Regulation of Social Media & Free Speech
30th December 2019.
A REVIEW OF THE HATE SPEECH BILL
The Independent National Commission for the Prohibition of Hate Speeches Bill a.k.a. “Hate Speech Bill” (“the Bill”) remains one of the most controversial Bills to be passed by the Legislative arm of government in Nigeria. Although, it is still at the first reading stage, it has already received a lot of criticism and agitations by various groups and stakeholders clamouring for a review of the capital punishments prescribed in the Bill or for the discountenance of the Bill in its entirety. Many perceive the Bill as an attempt by the government to place limitations on the freedom of expression of its citizens, a fundamental human right enshrined in the constitution of Nigeria, while some others see it as a Bill which not only goes against morality but is an offshoot of the antics of some political leaders who desire to further their personalised objectives.
The stated objective of the Bill is to promote national cohesion and integration by outlawing unfair discrimination, hate speeches and the establishment of an Independent National Commission for the prohibition of hate speeches and connected matters. The Bill specifically prohibits the commission of ethnic discrimination, hate speech, harassment on the basis of ethnicity, ethnic or racial contempt and discrimination by way of victimization by individuals or corporate bodies. The Federal High Court is the court empowered with exclusive jurisdiction to try all offences of such nature under the Bill.
The draft Bill is structured into four parts and further divided into fifty-five provisions. Part I provides for preliminary aspects of the Bill like the short title and interpretation of words and phrases adopted by the drafters; Part II makes provision for the types of discrimination to which the Bill applies; Part III makes provision for the establishment of an Independent National Commission for the prohibition of hate speeches, while Part IV provides for enforcement matters. We will examine below, some of the provisions in the Bill which are relevant to note.
- Ethnic Discrimination
The Bill makes provision for instances when a person would be said to have discriminated against a Nigerian citizen without lawful justification on the grounds of ethnicity. It provides thus:
“a person discriminates against another person if on ethnic grounds the person without lawful justification treats another Nigerian citizen less favourably than he treats or would treat other person from his ethnic or another ethnic group and/or that on the grounds of ethnicity a person puts another at a particular disadvantage when compared with other person from other ethnic nationality in Nigeria.”
It further provides that a person may be said to have discriminated against another if:
“…he applies to that person a provision, criterion or practice which he applies or would apply equally to persons not of the same race, ethnic or national origin as that other.
The implication of this provision is that if a person should be found discriminating against another Nigerian citizen by placing him at a disadvantageous position compared to how he treats others from his own ethnic group or if he extends a criteria to such person which he applies equally to persons of a different race or ethnic origin, he would be in breach of this provision and hence be found liable. The inclusion of this provision appears to be an attempt by the government to address the perennial challenges of tribalism and ethnic favouritism in Nigeria.
- Hate Speech
S.4 of the Bill prohibits the use, production, publishing, distribution, presentation, or direction of the performance of any visual or written material which is threatening, abusive or insulting or involves the use of such words in order to stir up ethnic hatred or from which ethnic hatred is likely to be stirred up against such person from an ethnic group in Nigeria. It prescribes a punishment of life imprisonment for any person found liable of committing this offence and a penalty of death by hanging where such act causes any loss of life.
The implication of this provision is that if a person is found guilty of committing any of the above stated offences; such person could be sentenced to life imprisonment upon conviction or death by hanging if his actions results in the death of another person. The punitive sanctions prescribed appears to be rather harsh and extreme, taking cognisance of the current civil reactive unrest in Nigeria. In some other jurisdictions like the United States, there are no regulations on Hate Speeches, not to mention a regulation with such an extreme penalty in Nigeria. The United States courts have consistently ruled against the enactment of laws that criminalize hate speech, considering such laws as violations of the right to free speech of the people and discountenancing such laws as contrary to the US Constitution. Also, in the United Kingdom, there are a number of laws that regulate hate speeches but the punishments each prescribes are fines, short imprisonment terms or both which are more lenient compared to the harsh penalties in the proposed Hate Speech Bill.
Also, the Cybercrimes Act made similar provisions criminalizing some racist and xenophobic related offences which are contained in the Hate Speech Bill but the penalties prescribed are imprisonment for a term not more than 5 years or a fine of N10 million or both, which are also lesser punishments as opposed to the capital punishment stipulated in the Bill. Consequently, what is the point of promulgating another law unless the pre-existing law is inadequate or not broad enough?
- Harassment on the basis of ethnicity
S.5 of the Bill makes provision for persons who subject another citizen to harassment on the basis of ethnicity, it buttresses on the circumstances when the offence will be said to have been committed. For instance, if a person unjustifiably engages in a conduct with the intention of violating the dignity of another citizen or if the person creates an intimidating, hostile, degrading, or offensive environment for another citizen, such person will be found liable under this provision of the Bill. Furthermore, the Bill prescribes a punishment of imprisonment for a term not less than 5 years, or a fine of not less than N10 million or both, for a person found liable of the offence.
- Ethnic or Racial Contempt
The offence of ethnic or racial contempt will be said to have been committed, if a person intentionally utters inciting words to elicit contempt, hatred, hostility, violence or discrimination against any person, group or community on the basis of ethnicity or race. A term of imprisonment for not less than 5 years, or a fine of not less than N10 million or both, is prescribed for a person found liable of employing inciting words or utterances intended to elicit ethnic or racial contempt.
- Discrimination by way of victimization
This provision prohibits discrimination in the form of victimization of another citizen, especially if a person is found doing any act calculated to be injurious to the wellbeing and esteem of another person by treating such other person less favourably than he would likely treat other persons because the person subjected to the victimization has lodged or intends to lodge a complaint under the Bill or has given or intends to give information in connection with actions brought against another person under the Bill. A second aspect of the provision prohibits the making of false statements or the giving of false or misleading information to the Commission or any person acting on the delegated authority of the Commission. It prescribes a penalty of a fine of N2 million or imprisonment for a term not less than 12 months or both for anyone found guilty of the aforementioned offences.
- Offences by body of persons
The Bill did not exclude corporate entities and firms from liability. It prescribes that in the event that a corporate body commits any of the above stated offences and is found liable under the Bill, every director, trustee and officer of that corporate body will be deemed guilty of the offence. This implies that the veil of incorporation of the corporate entity will be removed in order to proceed against the alter egos of the corporate body. The provision also extends to firms, and in such instance, every partner of the firm will also be deemed guilty of the offence.
- Establishment of the Independent National Commission for the Prohibition of Hate Speeches
The Bill makes provision for the establishment of an Independent National Commission for the Prohibition of Hate Speeches (“the Commission”). The Commission would, amongst other functions, be responsible for promoting peaceful co-existence amongst peoples of all ethnic groups by ensuring the elimination of all forms of hate speeches against any person or ethnic group; planning, supervising, co-ordinating and promoting educational and training programs to create public awareness. The Commission will also be responsible for discouraging persons, institutions, political parties and associations from advocating or promoting discrimination or discriminatory practices through the use of hate speeches; investigating complaints of ethnic or racial discrimination and making recommendations to the Attorney General, the Human Rights Commission or any other relevant authority on the remedial measures to be taken where such complaints are valid.
Furthermore, the Bill states the powers of the commission. It first gives the commission broad powers necessary in undertaking its objectives and other specific powers such as, the power to publish the names of persons or institutions engaged in the furtherance of ethnic discrimination or whose words or conduct would likely undermine good ethnic relations; power to join any local or international organization or body that it considers expedient in carrying out its objective.
- Complaint and compliance procedures
The Bill empowers the commission to perform some quasi-judicial functions. It provides for the procedure for lodging complaints before the Commission by any person or corporate body alleging that another person or body of persons have breached the provisions of the Bill. The complaint must be in writing either by hand or via electronic transmission and delivered to the Commission which must also acknowledge receipt of the complaint lodged in writing as well. The Commission has the discretion to decline to entertain complaints that it feels are frivolous or malicious; involves a subject matter that in its opinion would be better dealt with by the court or a subject matter that has been sufficiently dealt with by the court and; relates to a breach that took place more than twelve (12) months before the complaint was lodged. If the commission declines to entertain a complaint, it must notify both the complainant and the person who was alleged to have breached the provisions of the Bill in writing within forty five (45) days after receipt of the complaint.
The Commission is also empowered to refer complaints for conciliation and in instances where it feels that conciliation is impracticable, it must notify both the complainant and the respondent in writing. However, if the commission decides to hear a complaint after the parties involved have furnished all evidence they intend to rely on, the Commission may either find the complaint or any part of it proven and issue a compliance notice or decline to take any further action in the matter. The compliance notice issued would require the recipient of the notice to comply with the content of the notice and inform the Commission of the steps taken to comply with the requirements stipulated in the notice. If a complaint is not proven the Commission may dismiss same in its entirety or any part of it.
It is a truism that the right of every citizen to free speech should not be abused and the government could place restrictions on those rights necessary to protect the rights of other citizens or public confidence in the government and its systems. However, such powers by the government to make laws or regulations affecting the fundamental rights of its citizens should not be misused. Since the country operates a democratic system of government, laws which tend to abridge the fundamental rights of citizens require proper consultations with the people or their representatives before such Bills are proposed in the legislative houses. The legislative body, as one of its duties, is permitted to originate Bills, bordering on any lawful issue, to be passed into law but such powers also needs to be checked to curtail incidences of legislators who want to further their personalised objectives rather that effectively representing and furthering the interest of the people who elected them. The inclusion of a capital punishment like the ‘death by hanging’ penalty for the offence of hate speech is rather extreme and draconian. Although the Senate sponsors of the Bill, after much agitation and public outcry, have promised to review the harsh punitive sanctions, their decision is not final as it is still subject to deliberations by the House of Representatives.
Also, the wordings of the Bill are very broad and contain provisions which appear to generalise every insulting or abusive word on a particular ethnic group as hate speech. There is a thin line between hate speech and offensive speech since not all forms of offensive speech can be categorised as a hate speech. The description of hate speech in relation to the Bill should have been restricted to some extreme circumstances, for instance, a statement made with the intention of inciting tribal wars and causing a division of the country, statements that clearly indicates imminent danger or injury on certain people etc. If the Bill is enacted into law in its current form, it may imply that even comedians who crack sarcastic ethnic related jokes can be construed as guilty of the offence of hate speech by ethnic affiliations offended by the direction of the jest. It would clearly be problematic for the government to devise modalities for enforcing the provisions of the Bill without causing civil unrest among the various factions of Nigeria’s ethnic groups.
Furthermore, there are some significant omissions in the Bill, which should have been included during the drafting of the Bill. For instance, there was no express provision for the liability or exemption from liability of internet platforms, content intermediaries, or social media platforms where such contravening offences are committed. Also, the Bill does not contain a comprehensive interpretation section clearly defining some words and phrases used in the Bill. Similarly, there was no punishment prescribed for corporate entities, asides from the application of the penalties to their alter ego. A compulsory winding up of the company could have been included as appropriate penalty for corporate entities.
This is not an attempt to support the promotion of hate speeches. Hate Speech in itself is wrong, it threatens the country’s unity, peace and efforts of the government in nation building, and it similarly widens the social gap between Nigerians. However, its regulation should be traded with caution, the extremely punitive capital punishments proposed in the Bill should be reviewed and the wordings of the Bill should be redrafted to avoid falling into a slippery slope with precarious consequences. Legislators should engage the services of experienced and knowledgeable draftsmen or lawyers in drafting such sensitive laws because at the bottom of it all, the aim is to build a unified and peaceful Nigeria.
For further information on this article and area of law, please contact
Sandra Eke at: S. P. A. Ajibade & Co., Lagos
by telephone (+234 1 472 9890), fax (+234 1 4605092)
Mobile: +234.7033857874 or Email: email@example.com
 Sandra Eke, Associate Intellectual Property & Technology Law Department, SPA Ajibade & Co.,
 Federal Republic of Nigeria National Assembly, “Bill Tracker” available at:
https://www.nassnig.org/documents/bill/10613# accessed 12th December 2019.
 S.39 (1) Constitution of the Federal republic of Nigeria 1999, as amended.
 S.55 Hate Speech (Prohibition) Bill 2019.
 S.3(1) HSB.
 S.3(2) HSB.
 S.4 (2) HSB.
 Wikipedia, “Hate speech in the United States” available at: https://en.wikipedia.org/wiki/Hate_speech_in_the_United_States accessed 19th December 2019.
 Wikipedia, “Hate speech laws in the United Kingdom” available at: https://en.wikipedia.org/wiki/Hate_speech_laws_in_the_United_Kingdom#Statutes accessed 19th December 2019.
 S.26 Cybercrimes (Prohibition, Prevention, Etc.) Act, 2015.
 S.5(3) HSB.
 S.6 HSB.
 S.7(1) HSB.
 S.7(2)(e) HSB.
 S.8(a) HSB.
 S.8 (b) HSB.
 S. 9(1) HSB.
 S.19 HSB.
 S.20 HSB.
 S.37 HSB.
 S.38 HSB.
 S.39 HSB.
 S.39(1) HSB.
 S. 43-44 HSB.
 S.50 HSB.
 S.51 HSB.
 S.45 1999 Constitution of the Federal Republic of Nigeria, as amended.
 Punch Newspaper, “Hate Speech Sponsors bow to pressure, removes death penalty” available at: https://punchng.com/hate-speech-sponsor-bows-to-pressure-removes-death-penalty-from-bill/ accessed 12th December 2019.
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