‘Only constitutional amendment can criminalise hate speeches’

Following the Federal Government’s pronouncement to henceforth treat hate speeches as an act of terrorism, legal practitioners differ on the legality of doing so, without an amendment of the Terrorism Act 2011, by the National Assembly.

According to them, the government may not, by mere pronouncement, criminalise an action without a legislation, hence the need to tinker with the existing law.

In his remarks at the National Economic Council (NEC) retreat on National Security, last Thursday, Acting President, Yemi Osinbajo said: “The Federal Government has drawn a line on hate speech. Hate speech is a specie of terrorism. Terrorism as it is defined popularly, is the unlawful use of violence or intimidation against individuals or groups, especially for political ends.

“The law on hate speech – the Terrorism Act 2011, defines hate speech among other definitions, as an act, deliberately done with malice, and which may seriously harm or damage a country or seriously intimidate a population.”

An Abuja-based Senior Advocate of Nigeria, Prof. Epiphany Azinge, is specifically of the opinion that the government may not, by mere pronouncement, criminalise an action without a legislation.

“The truth of the matter is that you do not criminalise an action verbally, or by mere pronouncements or proclamation as the case may be. So, since there is no law in place at the moment to take care of hate speeches, it becomes a little bit difficult, but one thing we can say is that it is possible by a stretch of interpretation to include such offense,” Azinge said.

He continued: “All I can say is that by a stretch of interpretation and definition, whatever is capable of provoking violence or terrorising people can be included in the bill. This is because terrorism simply, is the act of terrorising people and it is not only by physical violence, or shooting that you can terrorise. There could also be an emotional or psychological terrorism – the one that can bring fear, hatred and intimidation in such a way that it creates fear in the minds of other people, which is the same thing the act of terrorism is all about.

“So, if you stretch hate speeches, it gets to the same end result – trying to terrorise people one way or the other. Having said that, the Acting President can also make use of amendment to quickly push the case so that he can clearly stipulate hate speeches of various kinds, and they can come under the umbrella of the Terrorism Act. I don’t think that such can take a long while.”

He stressed the need to draw a line between freedom of expression and hate speech saying, “This is because freedom of expression comes with limitations. This entails that one does not enjoy freedom of expression in such a way that it will amount to derogation of the rights of others.”

Victor Ozegbena, another legal practitioner aligns with Azinge, and insists that legislation is vital in defining the scope of hate speeches. Consequently, he suggested that there should be an enactment in order to avoid the state using it as a political instrument of suppression.

“The fact that the Acting President had said so does not make it a legislation. I want to put this issue in the right position. When there is a directive in place, it does not amount to a legislation, because legislation as provided in Sections 4 and 9 of the Constitution is a constitutional bedrock of the National Assembly.

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“It will be proper therefore for the acting president to approach it through the National Assembly, either by an executive bill, or an amendment to the Anti-terrorism Act, because if you do not create a legislation for it, anybody can define it as a political instrument of suppression,” he said.

Aside the issue of legislation, there is also the question of drawing a line between individuals’ rights to freedom of expression and hate speech. So, “Where does the right to expression end, and where does hate speech actually begin?” he asked.

Still in support of Azinge’s view is Solomon Ukhuegbe, who said under the Nigerian Constitution, the acting president cannot, by mere pronouncement, create new criminal offences, or turn a lawful conduct into a punishable crime. According to him, the Terrorism (Prevention) Act, No. 10 of 2011, does not specifically punish hate speeches.

His words: “Indeed the term ‘hate speech’ does not appear in the law at all. The Acting President had in mind Section 1(2)(b)(ii), which punishes as an ‘act of terrorism’ any act, which is deliberately done with malice afterthought, and which is intended or can reasonably be regarded as having been intended to seriously intimidate a population.

“In addition, an incitement to commit a terrorist act is also punishable. The situation is not affected by the Terrorism (Prevention)(Amendment) Act 2013… Although hate speech is associated with violence, threat of violence is not a necessary element of the offence of intimidating a population. But it seems that at least, the population is put in fear of violence or insecurity,” he said.

Ukhuegbe said it is not clear whether hate speech that merely denigrates a population, short of intimidating them, comes within the definition of a “terrorist act” under the legislation, adding that if such speech is through the medium of the Internet or a computer network, it may be an offence under the Cybercrimes Act.

However, Senior Advocate of Nigeria (SAN), Chief Sebastine Hon (SAN), who believes that Osinbajo was right in his classification of hate speech as a variant of terrorism, said Section 1(2) of the Terrorism Act, 2011, describes “an act of terrorism” as an act deliberately done with malice, which, amongst other things, is intended or can reasonably be regarded as having been intended to seriously intimidate a population, or seriously destabilise or destroy the fundamental political, constitutional, economic or social structures of a country or an international organisation.”

Hon, a constitutional lawyer and author added; “There can be no better description of the current situation in Nigeria, where ethnic or cultural groups are issuing, willy-nilly organised and unguarded threats to other ethnic groups in the country.

“I personally must commend the Acting President for this timely proclamation, which only confirms and I daresay, addresses my public statement a few days ago that the Federal Government must act fast to arrest our apparent, if not clear, descent to total anarchy, due to the avalanche of hate speeches flying over the whole place.”

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“The 2011 Terrorism Act was amended by Act No. 10 of 2013, which upped the minimum punishment for terrorism from two years to five years. I will ask the Federal Government to bring to bear, the full weight of the law on perpetrators and their financiers or supporters – as Section 4 of the 2011 Act criminalises support for terrorism.”

Abubakar Sani, a legal practitioner maintains that increasing incidents of inflammatory speeches, clearly designed to stoke ethnic and communal hatred, is what has led to calls for legislative intervention by the Nigerian State. These calls, he said, are evidently informed by the belief that there is a lacuna or gap in our existing laws on the subject.

Referring to the dangers of infringing on the constitutional rights of free speech, Sani said: “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.”

He was quick to add that by virtue of Section 45 of the constitution, the right to freedom of speech can be derogated by any law that is reasonably justifiable 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. This 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”, he stated.

Human rights lawyer, Ebun-Olu Adegboruwa thinks differently about the concept of hate speeches as acts of terrorism, even as he noted that the constitution, in Section 39 has granted an unqualified freedom of expression to every citizen.

“If any speech made has violated anybody’s legal rights at all, there is the extant common law remedy of libel actions for damages in civil cases and criminal libel in criminal cases.

“Recently, it has now become common place for government and government officials to seek to gag the people by seeking all manner of restraint of the freedom of speech. To that extent, I do not agree with the acting president on the concept of hate speeches as terrorism. Every citizen should be allowed the freedom of expression under the law.

“I believe that the National Assembly lacks the legal competence in law to pass into law, any bill seeking to gag citizens. Such a law, if ever passed, will run counter to Section 1 of the 1999 Constitution, which has declared the constitution to be the supreme law.

“Any law capable of hindering the freedom of expression granted under Section 39 of the 1999 Constitution, and the African Charter will be illegal and unconstitutional,” he declared, adding that the National Assembly has no power to make any law that will violate the constitution as it will be ultra vires.

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