Sowore: Can Insult Amount To A Criminal Offence Under Nigerian Law? By Oviemuno Obobolo Esq

Today, Omoyele Sowore, the Presidential candidate of the African
Action Congress (AAC) is expected to be arraigned before the
Federal High Court in Abuja on a 7 (seven) Count charge, as
reported in the media. Many Nigerians were surprised, indeed
alarmed, to learn that one of the Charges preferred against him by
the Federal Government of Nigeria accused him of insulting the
President. “So, insulting the President is now an offence”, they
ask sarcastically.

But seriously, what is the position of the law regarding insult?
Should I be concerned for my own good, is there a substance to this
charge or this is just one of the manifestations by a repressive
regime trying to gag the press and instil fear in the citizenry to
stop them from speaking against its perceived anti-human policies,
incompetence and inability to steer the ship of the nation
aright.

Many, would recall how an attempt to criminalize hate speech in
2018 was fiercely resisted by Nigerians. That bill reminded us of
the travail of our nation in 1984, when the then Military Head of
State, General Muhammadu Buhari promulgated the now infamous Decree
4 (Public Officers Protection Against False Publications) under
which two journalists, Nduka Irabor and Tunde Thompson, were
 jailed for refusing to diclose the source of a story, which
was claimed to have embarrassed the then Head of State. Though the
hate speech bill was eventually abandoned due to its unpopularity,
the present ordeal of Sowore reminds us again of that repressive
era in 1984.

The answer to the question cannot be a straight forward yes or
no, as same depend on so many factors. To answer the question, it
would be helpful to examine the relevant provision of the
Cybercrime Act. Section 24 (1b) of the Act under which Sowore has
been charged provides as follows;

“Any person who knowingly or intentionally sends a
message or other matter by means of computer systems or network
that …

(b) he knows to be false, for the purpose of causing
annoyance, inconvenience, danger, obstruction, INSULT, injury,
criminal intimidation, enmity, hatred, ill will or needless anxiety
to another or causes such a message to be sent:

commits an offence under this Act and shall be
liable on conviction to a fine of not more than N7,000,000.00 or
imprisonment for a term of not more than 3 years or to both such
fine and imprisonment.

A close examination of the above provision would reveal that
before a person can be convicted under the above provision, the
following must be established,

a. That the person sends an offensive message or other matter
via a computer or a network,

b. That he sends the message or other matter intentionally or
knowingly,

c. That he knows the message to be false, or causes such message
to be sent,

d. That he sends the message or other matter for the purpose of
causing annoyance, inconvenience, danger, obstruction, INSULT,
injury, criminal intimidation, enmity, hatred, ill will or needless
anxiety to another or causes such a message to be sent.

As reported by www.pulse,ng^[1] the
charges against Sowore states in part that he committed the offence
by “knowingly” sending “messages by means of press interview
granted on Arise Television network which [he] knew to be false for
the purpose of causing insult, enmity, hatred and ill-will on the
person of the President of the Federal Republic of Nigeria.” While
there are other elements in this charge than just insult, we would
restrict ourselves here to the issue of insult and whether same can
amount to a crime.

The first condition that needs to be met is that such insult
must be an e-insult. Laughs. What is an e-insult, you ask? In our
context, an e-insult is one sent over a computer or network. Please
bear in mind that we are discussing the provisions of a Cybercrime
Act and not merely criminal code law. This explains why the offense
is tied to communication via a computer or a network. So merely
insulting a fellow verbally or in writing cannot be brought under
the Act. Same applies to the other activities listed in the above
quoted provision.

Secondly, the message conveying the insult must have been sent
intentionally or knowingly. This means an e-insult sent
unintentionally or unknowingly would not amount to a crime.
However, what amounts to an intentional or unintentional sending of
a message is a matter of evidence which would be decided on a case
by case basis. In Sowore’s case, while I would not want to
prejudice the case in court, it is doubtful whether he can be held
liable for personally sending the “message” via a computer or
network by merely granting an interview and since he is not the
operator of the computer or network.

I am, however, not unmindful of the alternative provision which
covers instances where the accused causes another person to send
such a message. What amounts to causing the message to be sent is a
matter of evidence also and it is for the court to decide on a case
by case basis. I personally don’t see how granting an interview
would amount to causing another person to send a message unless the
interviewer or the person sending the message is subject to or
under the control of the person being interviewed and that he
actually instructs them to send the message.

Beyond the fact that the message which amounts to insult is sent
over the computer and that it is sent intentionally, the other
conditions that must be satisfied, which I consider to be more
important are;

1. The message or what is alleged by the message must be false
   and
2. The falsity must be known to the person sending the message
   over the computer or network.

This implies that a message sent over the computer e.g social
media calling another person a thief would not be a crime under the
Cybercrime Act, if the person is actually a thief or the person
making the claim honestly believe that the person is a thief or is
mistaken about the identity of the person he accuses to be a
thief.

The other implication is that “mere e-insults” that are
subjective in nature and that makes no categorical allegations as
to character, reputation or conduct would not constitute a crime
under the Cybercrime Act. For example, expressions such as “you are
mad”, you are stupid”, “look at your big head like a big basin”
would not be regarded as criminal offense under the Act even though
they qualify as e-insult, if sent over a computer network or social
media. In civil suits, the law is that vulgar words or abuse do not
amount to slander.

But, if in a bid to insult another person, one intentionally
make categorical statements via a computer network such as “you are
a thief”, “you are a murderer”, “you are a serial killer”, “you are
a fraudster” knowing fully well that the person in question is not
such a person, then one would have brought himself within the ambit
of the provisions of Section 24 of the Cybercrime Act, 2015 with
regards to insult. Those are the kind of e-insults that are within
the contemplation of the draftsman of the law and not political
statements made in the course of granting an interview.

Finally, what amounts to insult under the Cybercrime Act?
Interestingly, the Act did not define what amounts to an insult.
Therefore, reference must be made to the ordinary meaning of insult
in English Language. The Cambridge English dictionary defines
insult as an offensive remark or action i.e to say or do something
to someone that he considers to be rude or offensive.

Clearly, the foregoing definition indicates that what amounts to
an insult is essentially subjective. So, an insult is what a person
considers to be rude or offensive. What one person considers
offensive may be perfectly alright for another person. Like we say,
one man’s food is another man’s poison. It would be dangerous and
unjust to apply a subjective test in determining what constitute an
insult in any given case. The Court must therefore apply the
objective reasonable man’s test in every case to determine what
amounts to insult. I can only hope that this is what would be done
in Sowore’s case.

Personally, I believe that the word “insult” should not have
been included in the provisions of Section 24 (1b) of the
Cybercrime Act. It is laughable that we have a law that
criminalises insult in the 21^st century. The inclusion
of insult in that provision of the law is a manifestation of what
is referred to in legal parlance as inelegant drafting. The fact
that our lawmakers passed the bill into law that way and the
President gave accent without detecting or removing insult from
that provision only help to explain the quality of our legislative
process.

So to answer the question posed at the beginning; the answer is
yes but subject to the conditions that it is an e-insult, sent
intentionally over a computer network,  which makes false
categorical allegations, the falsity of which is known to the
person making the allegation and that the message is sent for the
purpose of insulting the person to whom it is directed.

Oviemuno Obobolo is a practicing
Lawyer based in Lagos. He is the Principal Counsel of
Oviemuno Obobolo & Co