ANALYSING THE PROPOSED HATE SPEECH BILL

I was recently sent (by a reliable source) a copy of the Hate Speech (Prohibition) Bill, 2019 going through the National Assembly, popularly known as the “Hate Speech Bill”. The website of the NA does not have a copy of the Bill for download. (I checked again today); so I am going by the version sent to me by this previously reliable source.

Let me be clear from the start that I am opposed to this Bill. It will cause more confusion and it is unnecessary. But rather than simple emotional outbursts; I will instead like to explain some of the problems with the Bill in a constructive way.

Do we have some problems with Incitement to violence in Nigeria? YES we do. So this bill is not completely unfounded. But I believe we have enough laws to deal with these matters, including the Cyber Crime Act signed by GEJ few years ago. Lack of enforcement of extant laws cannot simply be replaced by new laws.  Is there really a need to produce a new law specifically for Hate Speeches? I don’t think so.

Hate speech does exist and freedom of expression may sometimes be curtailed whenever there is an epidemic of the uttering of hate speech whether verbally or in print that might endanger public  safety, unity and national security. Hate Speech is even more dangerous in a society full of illiterate population like Nigeria, where falsehood can be easily weaponised. Legislation can be passed and prosecutions  initiated as a last resort and in a proportionate way.

In Nigeria; there are enough existing legislations to deal with these concerns if enforced by Government.  Due to previous feedback on length, I will make this thread as brief as possible. So here are some of my salient observations.

1. The Bill fails to take notice of the global Jurisprudence on this kind of legislation. The criminalisation of “Insulting and Abusive” statements is an affront to free speech. It is one thing to criminalise “Threatening” statements, but Abusive and Insulting statements are difficult to define in Law, because like beauty it can be in the eye of the beholder. What is abusive or insulting to one may not be to another.  So how can the court in a consistent way determine if a statement is Insulting? It is such a subjective concept.

2. The Bill focuses on Victimisation of complainants or officials of the new commission as well as Harassment of Nigerians on the basis of Ethnicity and Race; BUT it DOES NOT make any mention of several other globally accepted basis of harassment & discrimination such as:

a. Religious Harassment

b. Harassment on basis of Disability or Disfigurement

c. Gender-based Harassment and so on.

So simply focusing on Race & Ethnicity is meaningless & inchoate. If you want to deal with Harassment; then do so in ALL its manifestations & not such a narrow scope.

3. While it explains that Individuals and Corporate Bodies can be liable under this proposed law; the Bill does not include the Government itself or State Agents as liable. Why should there be one rule for Nigerians but a different one for government bodies.

The EXPRESS mention that the Government (who can be the biggest culprit) is included in liable parties will be needed to satisfy Equity. What is good for the goose, is good for the gander. The Government should be able to be sued for discrimination and harassment too.

4. With punishment from FIVE years imprisonment to Death Penalty; I believe this is an overkill. The punishment in this case does not fit the crime. Establishing Causation will be a challenge even with Vicarious liability imposed by this Bill. This needed to be toned down. Criminalising the incitement of violence or threats can be seen to be a justifiable limit on freedom of expression.

But my problem with this Bill is the criminalisation of speech (or behaviour) which may be unpleasant, may cause offence. That is what DEMOCRACY is all about. We should be free to disagree robustly and even offend each other as long as violence is not involved. Also, the Police is well able to prosecute any potential offences here. There is NO NEED to establish another money-wasting agency of government to do what the Police can do.

Or at the worst “Expand” the role of an existing agency; such as the National Human Rights Commission. Creating another agency is wasteful, unnecessary and not prudent.  As I have always stated, I accept that the right to free speech is not absolute – it can be limited to protect the rights of others. But any limitations on the right must be necessary and proportionate, and criminalising even the most unpalatable, illiberal & offensive statements should be approached with grave caution in a democracy. This Bill as proposed is not proportionate and should be discarded.

Proactive public enlightenment should be embarked on by the government bodies saddled with this responsibility in partnership with the media to curb incidences of hate speech. A proactive education and enlightenment campaign can be more effective than reactive responses by Government. Since a misguided Nigerian can simply go overseas and engineer Hate speeches from there, (which will make them untouchable by this Bill); Educating the masses is vitally more important than just chasing the hate mongers.

So to address the hate speech problems; let us see a small amendment to the CyberCrime Act 2015, to address any void the lawmakers.