Hate Speech has become a recurring topic in Nigeria, both online and offline. President Muhammadu Buhari, upon his return to Nigeria after about 104 days of medial vacation, had talked tough about comments on social media crossing the ‘national red lines’. The Military, in turn revealed that it was monitoring comments on social media for anti-government, anti-military remarks. Prior to the President’s return, Vice President, Yemi Osinbajo, announced that hate speech will be treated as an act of terrorism, even suggesting special courts for it. A bill against hate speech is currently pending before the National Assembly
A lot of people including our leaders are talking about this, without necessarily understanding what hate speech is and what it is not, when hate speech becomes dangerous speech, how it is handled in other countries and how to strike a balance with freedom of expression. So then, what exactly is hate speech?
What is Hate speech?
Hate speech is speech expressing hatred primarily against a person or group on account of race, ethnicity, national origin, gender, religion and sexual orientation which incites or is likely to provoke violence against that group.
Hate speech is not about criticising the government, a person or their actions. Hate speech because of its criminal nature are statements done with the intention of provoking violence
A number of human rights conventions and instruments, including the The International Covenant on Civil and Political Rights (ICCPR), which Nigeria is party to, requires signatories to prohibit hate speech. Interestingly, incitement to genocide, which is a form of hate speech, is recognised under international law as a form of crime similar to war crimes and crimes against humanity. The trial of radio personalities at the International Criminal court (ICC) for their broadcast during the Rwandan genocide and the Nuremberg trial that tried Nazis and publishers of their propaganda during 2nd world war, are ready examples.
Is it recognised under our laws?
Currently, there is no categorical or widespread definition of hate speech in Nigerian law. Some laws like the CyberCrime Act 2015, Criminal code and the Electoral Act contain references to hate speech in particular situations.
Under the Criminal Code, criminal defamation, inciting statements, breach of the peace, criminal intimidation, publication of statement, rumour or report which may disturb public peace, false publication are offences. It however does not capture speech that is targeted at a group based on their distinctive characteristics. Section 95 of the Electoral Act 2010 as amended provides that no political campaign or slogan shall be tainted with abusive language directly or indirectly likely to injure religious, ethnic, tribal or sectional feelings. This however deals only with political campaigns. The Cybercrime Act attempts to deal with hate speech in S26 by referring to racist and xenophobic speech spread through a computer network. The problem with this however, is that it restricts itself to messages spread through a computer network. Hate speech can be spread both online and offline.
There is therefore no comprehensive law curtailing hate speech in Nigeria. What our laws do guarantee clearly is freedom of expression in Section 39 of the 1999 constitution. It should however be noted that S45 of the constitution gives the power to restrict any of the constitutionally guaranteed rights for the purpose of public safety, public order, public morality and public interests as far as it is reasonably justifiable in a democratic society.
Is hate speech terrorism?
VP, Yemi Osinbajo, stated that hate speech is terrorism. He stated
“The Terrorism Prevention Act 2011 as amended defines terrorism as an act which deliberately done with malice which may seriously harm a country or is intended or can be reasonably be regarded as having been done to seriously intimidate a population.”
While hate speech in some countries is treated as a crime of its own, it is in no way given the same ascription as terrorism. They are two very different things.
How is it treated in other countries?
In the UK, hate speech is recognised in several laws. Speech or behaviour which is threatening , abusive or insulting is hate speech if intended and is likely to stir up hatred against persons on religious, racial or sexual orientation grounds. Laws such as the Public Order Act 1986 and the Criminal justice and immigration Act provide for this. Penalties include fine and imprisonment. The law however balances this nicely and protects freedom of expression by permitting discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or even trying to convert other faiths.
In the US, the provisions of the constitution protecting free speech (First Amendment), does not prohibit hate speech. It prohibits fighting words, ‘words that inflict immediate injury or tend to incite a breach of the peace’ but unlike hate speech, fighting words requires a direct face to face confrontation. US law recognises that in line with principles of freedom of expression, individuals do have a right to speech that the listener disagrees with and to speech that is offensive and hateful. Instead of punishing the speech, US law discourage and punish hate crimes which is actual hateful conduct as a result of race, religion or sexual orientation. The recent white supremacist incident in Charlottesville, USA, has however stirred another debate on whether the first Amendment needs to be revisited.
While we may not be as mature as the USA to allow hate speech to prevail given our history and political context, can we also trust our government and security agents to do the right thing like the UK government and not clampdown on opposition or citizens with a legitimate grievance, just because it doesn’t go down well with the party in power? The arrest of bloggers and citizens for social media comments under the Cybercrime Act, such as the Kwara indigene who made a comment against Senate President, Bukola Saraki, makes one wonder if this is indeed possible. Who also checks our political leaders who are largely known to use hate speech? Till date, no one has been convicted for flouting the electoral provisions on hate speech even though instances abound.
How to balance restricting hate speech and allowing freedom of expression?
Freedom of expression constitutes one of the essential foundations of a democratic society. Freedom of speech does not only protect popular or conformist opinion and ideas. It also protects unpopular ideas and statements which “shock, offend or disturb.” The principle is the duty not just to defend someone’s right to say something with which you agree but also the duty to defend speech to which you may strongly oppose.
Punishing hate speech could potentially limit your constitutionally guaranteed right to freedom of speech or expression. However, there needs to be a balance between protecting community interests from violence as a result of hate speech and safeguarding the rights of the individual to free speech. A balance must be struck that protects the civil rights of all without limiting the civil liberties of one. Every ‘formality’, ‘condition’, ‘restriction’ or ‘penalty’ imposed to restrict freedom of speech must be proportionate to the legitimate aim pursued.
While it may be necessary to have laws against hate speech on and off social media, hate speech laws should not be passed to silence dissent and critics as it is contrary to the tenets of democracy. Equating it with terrorism and giving the military the power to handle hate speech is also not proportionate.
In a 2001 Joint Statement, the UN, OSCE and OAS Special Mandates on the right to freedom of expression set out a number of conditions to assess the legitimacy of hate speech laws. This included that no one should be penalised for statements which are true and unless the speech was done with the intention of inciting discrimination, hostility or violence, it should not be proscribed.
How should we approach this?
Discussions around and attempts to tackle hate speech should not just rely on the undefined term “hate speech”. It should explicitly explain what viewpoints the government would be allowed to suppress, which opinions would remain protected, and how we are supposed to differentiate both.
Where there is uncertainty as to hate speech or national red lines, Nigerians may have no choice but to avoid all manner of legitimate speech for fear of penalties. This in turn will stifle free comment. News organizations, radio shows, and websites would more staff and troops of lawyers to determine speech that may cross an unclear legal line of offence. Censoring websites will in turn stifle business and even internet penetration.
Rwanda justifiably aggressively tackled hate speech after the 1994 genocide. However, there is political environment where all opposition is silenced. A leading political opponent, Victoire Ingabire, is serving a 15-year prison sentence for “divisionism” while Rwandan President Paul Kagame just won re-election to a third term securing his 30 years tenure.
We could also tackle the matter by encouraging self-regulation from websites and media houses which are platforms where such information is published. Germany which has instituted a new law that offensive speech must be pulled down from social media sites such as Facebook within 24 hours. Perhaps tackling hate speech from the underlying root cause of disaffection with policies of government may also help.
Whatever laws or methods we take must provide a delicate balancing act and ensure that at the end, free speech is protected. Only statements which are done with the intention to incite violence must be tackled
By Adaora Okoli
Adaora Okoli is head writer at techcultureNG. She is a double edged sword. A media personality and a lawyer with specialty in internet policy and technology