Anti-hate Speech: Lawyers Set Agenda For Legislation

Legal experts in the country have posited that as much as the
proposed anti-hate speech laws have become imperative with the
prevailing political undercurrent in the country, the federal
government should expressly and explicitly define what constitute
hate-speeches to avoid making laws that will remove the right to
freedom of speech conferred on the citizens by the 1999
Constitution (as amended).

Besides, the experts, including constitutional lawyers and
members of the inner bar, said the federal government should take
necessary precaution to avoid making laws that would breed
political bull dogs, tyrants and irresponsible leaders who could
seize such laws as instrument for suppression, intimidation and
subjugation of the opposition in a democratic setting.

In separate interviews with our reporter, the lawyers, however,
said a cursory look at what led to serious crisis and bloodshed in
the country in the past is enough to persuade any sane person to
support the proposed anti-hate speech laws at this point in
time.

They added that although the laws against anti-hate speech are
all over in the country’s laws without saying so, the federal
government should make the law so defined, expressly and explicitly
so stated to avoid abuses in the future.

The freedom of speech or expression as guaranteed by virtue of
Section 39 (1), the lawyers also said, is not absolute like the
right to life and some fundamental rights that are absolute.

They further stated that since it is not absolute, its abuses,
reckless or destructive uses against the state or other persons can
be mitigated by act of the parliament.

They noted that if by one’s hate speech, the right of others or
that of the state will be infringed upon, the parliament is
entitled to amend the law being subject to abuses.

To this effect, former President of Nigeria Bar Association
(NBA), Olisa Agbakoba (SAN), said, “This right is not absolute in
the strict sense of the fundamental human rights of persons.
Chapter 4 of the Constitution has both absolute and non-absolute
fundamental rights. Absolute rights cannot be invalidated by act of
parliament.

“No one can be allowed to exercise a right to the extent of
wrecking havoc or destroying same society that grants that right.
If by one’s hate speech, the right of others or that of the state
will be infringed upon, the parliament is entitled to amend the law
being subject to abuses. This is because the right is granted for
overall wellbeing of the country and its citizens”.

Another member of the inner bar, Chief Niyi Akintola said,
“There is no absolute freedom anywhere in the world. Where one’s
right stops is where another person’s right begins. You have your
right to swing hand to an extent it should not touch next person’s
nose.

“No country will grant right to set that nation ablaze. This is
why there exist laws against incitement in the criminal and penal
codes in the country from the onset, just as there have been
provisions for libel suit in our books. No government in the world
would watch persons inciting one tribe against the other, otherwise
there would be anarchy for it to deal with”.

A constitutional lawyer, Alasa Ismaila noted that anti-hate law
is justifiable if public safety, public morality, public order is
safeguarded.

He said, “Also, it will ensure that the rights of the targets of
hate speeches are not infringed on. Section 39(1) of the 1999
Constitution is not absolute but limited by Section 39(3) and in
particular by Section 45(1)(a) &(b) of the Constitution which
allows for the making of laws to regulate the way and manner of the
exercise of the right to express oneself.

“Note that the Constitution is an organic document and is to be
interpreted holistically. The whole Chapter IV dealing with
Fundamental Rights has to be taken together before arriving at
whether or not there is an infraction. In this case, the law to
check the excesses of the fringe elements that thrive on polluting
the public space with hate speeches is very welcome and
constitutional”.

Another constitutional lawyer, Abanika Muktar Isah, said while
section 39 of the constitution guarantees the right to freedom of
expression and the press, which is really cherished all over the
world, this right like other fundamental rights is not automatic as
it accommodates exceptions.

He said, “The most gargantuan limitation to these is the right
of the state to regulate free speech and the right of other members
of the society and the rights of other members of the state not to
be defamed by persons expressing freedom of speech.

‘’However, the federal government should take necessary
precaution to avoid making laws that shall at large and in the long
run breed or give to emergence of political bull dogs, tyrants and
irresponsible leadership who would seize such laws as instrument
for suppression, intimidation or subjugation of the opposition in
our democratic settings.

“To start with, let there be explicit and categorical definition
of what constitute hate-speech offences to avoid infringing or
removing completely, rights provided for in Section 39 (1) of the
Constitution”.

In his reaction, a former General Secretary of Nigerian Bar
Association, Dele Adesina, said, while one needs to be careful in
commenting on the call for legislation against hate-speech, the
Constitution is very clear on the fundamental rights of the
citizens in Section 39 (1), which specifies that every person shall
be entitled to freedom of expression, including freedom to hold
opinion and to receive and impart ideas and information without
interference.

He said, “The Constitution is the barometer of government
decisions and actions. And right now, I don’t know what is the
difference between hate or friendly speech. All I know is that we
have the laws of libel and slander and anybody whose rights has
been breached based on that can go to court.

“The point I am trying to make here is: won’t such legislation
amount to a restriction on what the constitution has provided? I
think we will understand better when such legislation is put in
place”.

Also reacting to the issue, human rights lawyers, Ebun-olu
Adegboruwa, said the constitution in section 39 has granted an
unqualified freedom of expression to every citizen.

Adegboruwa insisted that if any speech 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.

He said, “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. Secondly, 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. To that extent, the National
Assembly has no power to make any law that will violate the
Constitution. It is ultra vires.

“It is in the light of the above that I find it difficult to
agree with this current government declaration that there is a need
for a new law to regulate what people term as hate speeches. This
is just an attempt by the ruling Apc government to gag citizens and
if such law is ever passed, we shall challenge it in court”.

However, a Senior Advocate of Nigeria, Sebastine Hon, said
Osinbajo was “absolutely correct” in his position on the issue of
hate speech.

Hon, in a statement, noted that section 1(2) of the Terrorism
Act, 2011, has described ‘an act of terrorism’ as an act
deliberately done with malice, which, among 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.

He argued that there could 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 Nigeria.

He said, “I personally must commend the acting president for
this timely proclamation, which only confirms and I dare say
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.

“The 2011 Terrorism Act was amended by Act No. 10 of 2013, which
upped the minimum punishment for terrorism from 2 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”.

Legal experts in the country have posited that as much as the
proposed anti-hate speech laws have become imperative with the
prevailing political undercurrent in the country, the federal
government should expressly and explicitly define what constitute
hate-speeches to avoid making laws that will remove the right to
freedom of speech conferred on the citizens by the 1999
Constitution (as amended).

Besides, the experts, including constitutional lawyers and
members of the inner bar, said the federal government should take
necessary precaution to avoid making laws that would breed
political bull dogs, tyrants and irresponsible leaders who could
seize such laws as instrument for suppression, intimidation and
subjugation of the opposition in a democratic setting.

In separate interviews with our reporter, the lawyers, however,
said a cursory look at what led to serious crisis and bloodshed in
the country in the past is enough to persuade any sane person to
support the proposed anti-hate speech laws at this point in
time.

They added that although the laws against anti-hate speech are
all over in the country’s laws without saying so, the federal
government should make the law so defined, expressly and explicitly
so stated to avoid abuses in the future.

The freedom of speech or expression as guaranteed by virtue of
Section 39 (1), the lawyers also said, is not absolute like the
right to life and some fundamental rights that are absolute.

They further stated that since it is not absolute, its abuses,
reckless or destructive uses against the state or other persons can
be mitigated by act of the parliament.

They noted that if by one’s hate speech, the right of others or
that of the state will be infringed upon, the parliament is
entitled to amend the law being subject to abuses.

To this effect, former President of Nigeria Bar Association
(NBA), Olisa Agbakoba (SAN), said, “This right is not absolute in
the strict sense of the fundamental human rights of persons.
Chapter 4 of the Constitution has both absolute and non-absolute
fundamental rights. Absolute rights cannot be invalidated by act of
parliament.

“No one can be allowed to exercise a right to the extent of
wrecking havoc or destroying same society that grants that right.
If by one’s hate speech, the right of others or that of the state
will be infringed upon, the parliament is entitled to amend the law
being subject to abuses. This is because the right is granted for
overall wellbeing of the country and its citizens”.

Another member of the inner bar, Chief Niyi Akintola said,
“There is no absolute freedom anywhere in the world. Where one’s
right stops is where another person’s right begins. You have your
right to swing hand to an extent it should not touch next person’s
nose.

“No country will grant right to set that nation ablaze. This is
why there exist laws against incitement in the criminal and penal
codes in the country from the onset, just as there have been
provisions for libel suit in our books. No government in the world
would watch persons inciting one tribe against the other, otherwise
there would be anarchy for it to deal with”.

A constitutional lawyer, Alasa Ismaila noted that anti-hate law
is justifiable if public safety, public morality, public order is
safeguarded.

He said, “Also, it will ensure that the rights of the targets of
hate speeches are not infringed on. Section 39(1) of the 1999
Constitution is not absolute but limited by Section 39(3) and in
particular by Section 45(1)(a) &(b) of the Constitution which
allows for the making of laws to regulate the way and manner of the
exercise of the right to express oneself.

“Note that the Constitution is an organic document and is to be
interpreted holistically. The whole Chapter IV dealing with
Fundamental Rights has to be taken together before arriving at
whether or not there is an infraction. In this case, the law to
check the excesses of the fringe elements that thrive on polluting
the public space with hate speeches is very welcome and
constitutional”.

Another constitutional lawyer, Abanika Muktar Isah, said while
section 39 of the constitution guarantees the right to freedom of
expression and the press, which is really cherished all over the
world, this right like other fundamental rights is not automatic as
it accommodates exceptions.

He said, “The most gargantuan limitation to these is the right
of the state to regulate free speech and the right of other members
of the society and the rights of other members of the state not to
be defamed by persons expressing freedom of speech.

‘’However, the federal government should take necessary
precaution to avoid making laws that shall at large and in the long
run breed or give to emergence of political bull dogs, tyrants and
irresponsible leadership who would seize such laws as instrument
for suppression, intimidation or subjugation of the opposition in
our democratic settings.

“To start with, let there be explicit and categorical definition
of what constitute hate-speech offences to avoid infringing or
removing completely, rights provided for in Section 39 (1) of the
Constitution”.

In his reaction, a former General Secretary of Nigerian Bar
Association, Dele Adesina, said, while one needs to be careful in
commenting on the call for legislation against hate-speech, the
Constitution is very clear on the fundamental rights of the
citizens in Section 39 (1), which specifies that every person shall
be entitled to freedom of expression, including freedom to hold
opinion and to receive and impart ideas and information without
interference.

He said, “The Constitution is the barometer of government
decisions and actions. And right now, I don’t know what is the
difference between hate or friendly speech. All I know is that we
have the laws of libel and slander and anybody whose rights has
been breached based on that can go to court.

“The point I am trying to make here is: won’t such legislation
amount to a restriction on what the constitution has provided? I
think we will understand better when such legislation is put in
place”.

Also reacting to the issue, human rights lawyers, Ebun-olu
Adegboruwa, said the constitution in section 39 has granted an
unqualified freedom of expression to every citizen.

Adegboruwa insisted that if any speech 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.

He said, “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. Secondly, 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. To that extent, the National
Assembly has no power to make any law that will violate the
Constitution. It is ultra vires.

“It is in the light of the above that I find it difficult to
agree with this current government declaration that there is a need
for a new law to regulate what people term as hate speeches. This
is just an attempt by the ruling Apc government to gag citizens and
if such law is ever passed, we shall challenge it in court”.

However, a Senior Advocate of Nigeria, Sebastine Hon, said
Osinbajo was “absolutely correct” in his position on the issue of
hate speech.

Hon, in a statement, noted that section 1(2) of the Terrorism
Act, 2011, has described ‘an act of terrorism’ as an act
deliberately done with malice, which, among 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.

He argued that there could 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 Nigeria.

He said, “I personally must commend the acting president for
this timely proclamation, which only confirms and I dare say
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.

“The 2011 Terrorism Act was amended by Act No. 10 of 2013, which
upped the minimum punishment for terrorism from 2 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”.