Freedom Of Expression And Legality Of Limiting Thoughts And Opinions By Criminalizing Speech In Nigeria -By Sambo Muritala Esq

Filed under: Democracy & Governance |

Sambo Muritala Esq

 

We are the minorities, we are the governed, we are the masses, we are the abused citizens, we are at the receiving ends of every government policies, “we are the people” referred to in the concept of constitutional democracy, we are the bosses to everybody in position of authority through the democratic process. It is moral insubordination and political rascality for any government to tag opinion faulting government policies, a constructive argument is borne out of reasoning, expressions of dissatisfaction of ruling governments and view on how governance ought to be handled as against the way is being handled as hate speech.

The only good thing that is holding us together as a nation which is equally our armour as ordinary members of this society is the sacred nature of our Constitution, and when it is observed that that is missing, the hope in Nigeria as a Nation will surely fall apart and I am sure the centre will surely not hold any longer. The thought of bringing up Hate Speech as a means by which masses and opposition will shut out of the services of checking governmental excesses is in itself a high sense of irresponsibility. To make a proper and justified assessment to this topic, it is important to define the concept of hate speech.

Hate Speech

Definitions of Hate Speech seem similar among those countries which hold the concept as an offense because they have common features. Let us reflect on the few bellows.

Wikipedia Definition: Hate speech is a speech which attacks a person or group by attributes such as race, religion, ethnic origin, sexual orientation, disability, or gender.

USLegal Definition: Hate speech is a communication that carries no meaning other than the expression of hatred for some group, especially in circumstances in which the communication is likely to provoke violence. It is an incitement to hatred primarily against a group of persons defined regarding race, ethnicity, national origin, gender, religion, sexual orientation, and the like. Hate speech can be any form of expression regarded as offensive to racial, ethnic and religious groups and other discrete minorities or to women

Dictionary Definition: Hate Speech is a speech that attacks, threatens, or insults a person or group by national origin, ethnicity, color, religion, gender, gender identity, sexual orientation, or disability.

United Kingdom:

Main article: Hate speech laws in the United Kingdom

In the United Kingdom, several statutes criminalize hate speech against several categories of persons. The statutes forbid communication which is hateful, threatening, or abusive, and which targets a person on account of disability, ethnic or national origin, nationality (including citizenship), race, religion, sexual orientation, or skin color.

United State of America:

Hate speech has been reduced to nothing. It is safer to say Hate Speech Law do not exist in the state. The protection of civil rights, including freedom of speech, was not written into the original 1788 Constitution of the United States but was added two years later with the Bill of Rights, implemented as several amendments to the Constitution. The First Amendment, ratified December 15, 1791, provides (in relevant part) that “Congress shall make no law … abridging the freedom of speech, or of the press”. The Fourteenth Amendment, ratified on July 9, 1868, has been interpreted by the Supreme Court as extending this prohibition to laws enacted by the states. Based on this interpretation, every hate speech offenses brought to court is declared null and void as they are interpreted to limiting or repeal the first amendment (freedom of speech). R.A.V. VS. CITY OF ST. PAUL, (1992), SNYDER VS. PHELPS and METAL VS. TAM (2017)

Commentary:

Common features in the above definitions are DISABILITY, ETHNIC OR NATIONAL ORIGIN, NATIONALITY, RACE, SKIN, COLOUR, RELIGION, SEX, AND SEXUAL ORIENTATION. I do not see any reason why the government will think hate speech includes statement tends to instigate citizens against the government. If government so which to protect herself against citizens’ comments such government should rather resign and pull herself out of the corridor of governance. There are several numbers of cases that related to those features above and yet they were lost by fair and justified comments and inconsistency with freedom of expression. See the case of R.A.V. v. City of St. Paul, (1992). In 2011, the US Supreme Court issued their ruling on Snyder v. Phelps, which concerned the right of the Westboro Baptist Church to protest with signs found offensive by many Americans. The issue presented was whether the 1st Amendment protected the expressions written on the signs. In an 8–1 decision the court sided with Fred Phelps, the head of Westboro Baptist Church, thereby confirming their historically strong protection of freedom of speech, so long as it doesn’t promote imminent violence. The Court explained, “Speech deals with matters of public concern when it can ‘be fairly considered as relating to any matter of political, social, or other concern to the community’ or when it ‘is a subject of general interest and of value and concern to the public. In June 2017, the US Supreme Court affirmed in a unanimous decision on Matal v. Tam that the disparagement clause of the Lanham Act violates the First Amendment’s free speech clause. The issue was about government prohibiting the registration of trademarks that are “racially disparaging.” Justice Samuel Alito writes:

Speech that demeans by race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.” United States v. Schwimmer, 279 U. S. 644, 655 (1929) (Holmes, J., dissenting)

Justice Anthony Kennedy also writes:

A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all. The First Amendment does not entrust that power to the government’s benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society.

Effectively, the Supreme Court unanimously reaffirms that there is no ‘hate speech’ exception to the First Amendment.

Freedom Of Expression:

Sec. 39 (1) Every person shall be entitled to freedom of expression, including the freedom to hold opinions and to receive and impart ideas and information without interference.

(2)Without prejudice to the generality of subsection (1) of this section, every person shall be entitled to own, establish and operate any medium for the dissemination of information, ideas and opinions: Provided that no person, other than the Government of the Federation or of a State or any other person or body authorized by the President on the fulfillment of conditions laid down by an Act of the National Assembly, shall own, establish or operate a television or wireless broadcasting station for, any purpose whatsoever.

(3)Nothing in this section shall invalidate any law that is reasonably justifiable in a democratic society –

(a)For the purpose of preventing the disclosure. Of information received in confidence, maintaining the authority and independence of courts or regulating telephony, wireless broadcasting, television or the exhibition of cinematograph films; or

(b) Imposing restrictions upon persons holding office under the Government of the Federation or of a State, members of the armed forces of the Federation or members of the Nigeria Police Force or other Government security services or agencies established by law

Commentary:

There is no need to go on any voyage of interpretation to enable us to ascertain the intendment of the law and the law maker. No government in line with above section of the Constitution can deny any citizen the freedom of expression even if the expression is contrary to the position of the incumbent government. No matter how senseless the view, expression or opinion of any member of society may appear, it can not constitute an offense of hate speech against the government of the day. No wonder there exist a Democratic slogan: ‘majority will have their way while a minority will have their say.’ The reason behind this is to give room for a multiplicity of views and opinions as such, tolerance will go a long way in enhancing the purpose of democratic government.

Freedom of expression constitutes one of the essential foundations of a democratic society, one of the basic conditions for its progress and for the development of every man. Subject to paragraph 2 of Article 10 of the European Convention on Human Rights, it is applicable not only to ‘information’ or ‘ideas’ that are favorably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance, and broadmindedness without which there is no ‘democratic society.’ This means, amongst other things that every ‘formality,’ ‘condition,’ ‘restriction’ or ‘penalty’ imposed in this sphere must be proportionate to the legitimate aim pursued. See the case of Handyside v. the United Kingdom judgment of December 7, 1976, § 49).Tolerance and respect for the equal dignity of all human beings constitute the foundations of a democratic, pluralistic society. That being so, as a matter of principle it may be considered necessary in certain democratic societies to sanction or even prevent all forms of expression which spread, incite, promote or justify hatred based on intolerance provided that any ‘formalities’, ‘conditions’, ‘restrictions’ or ‘penalties’ imposed are proportionate to the legitimate aim pursued.” See the case of Erbakan v. Turkey judgment of 6 July 2006, § 56).

Connecting Hate Speech With Terrorism:

It is a wrong assumption for the Vice President Yemi Osinbajo to think hate speech can stay in the same category as terrorism. Thank God the skill and authority of interpretation of any existing laws and proposed laws reside in judiciary not the executive or legislative arm.

People can be punished for airing wrong speech either in writing or speaking, and enough laws exist for such purpose. It is so outrageous for anybody to think that any criticism or justified statement against any government can be classified as hate speech. No opposition will like ruling government and hate speech is always expected from opposition government and same is allowed as it promotes democracy. See the case of The Speaker, Bauchi State House of Assembly Vs. Danna Unreported, Appeal No. CA/J/207/2013 decided on the 3/12/2014. In this case, the respondent, a member of Bauchi State House of Assembly was placed on indefinite suspension by the house for alleged derogatory remarks she made while speaking on the floor of the Assembly. In voiding this indefinite suspension, the Court of Appeal relied upon inter alia the action of the appellants violated the respondent’s right to freedom of speech. Tur, J.C.A., who delivered the lead judgment, held emphatically on pages 60-61 as follow:

If derogatory remarks or comments are not permissible or tolerated the Bauchi State House of Assembly, that in itself is a violation of the freedom of expression, to hold opinions, to receive and impart ideas, etc., under Section 39(1) of the Constitution. What the appellant did also constitute an unwarranted attack on freedom to disseminate information, ideas and opinions. The Speaker and members of the Bauchi State House of Assembly ought not to have slammed an indefinite suspension on the respondent in this circumstance where the constituency had the interest to protect. In a democracy, conscious objectors must be tolerated. Their rights must not be trampled upon. The majority may not always be right. For example, in courts, dissenting judgments at times lay the foundation for amendment of the Constitution, statutes or rules by the legislature. For democracy to nurture in Nigeria, the opposition must be heard.

It is a further position of the Court of Appeal in the case of Duke Vs. Governor of Cross River State (2009) ALL FWLR (Part 488)252 @ 279 C.A., that pursuant to this subsection can validly stage a demonstration to demonstrate their distrust in government so far no law will be broken, and nothing will be destroyed in the process.

The Nigerian Military And The Hunt For “Hate Speech”

No military man has power or authority to intervene in any activities of people living in the country either civil or criminal. The power of the military is restricted to war and protection against external attack and terrorism within and outside the state. Police are the only constituted authority that can investigate, arrest, and prosecute any offenders. Even if the offence is committed against military man the matter will still be investigated by police.

“Hate speech” among all the countries in the universe has no flavor or link with the offense of terrorism which is a serious offense in the world and our own law should not be an exception.

There are enough laws that regulate inaccurate and offensive speech and it will not be necessary to duplicate offenses to avoid contradiction.

Hate speech has nexus with terrorism in all ramifications.

Directing military personnel to monitor how people react to issue is intimidation and promotion of lawlessness.

Hate speech law should be stopped from seeing the light of the day as same is of no essence.

A campaign against hate speech is a calculation of the government to protect her from any form of opposition.

If hate speech is passed into law in Nigeria, the very essence of opposition which is said to be the life wire of government will definitely be defeated.
Hate speech will curtail the full operation of freedom of expression as enshrined in section 39 of 1999 constitution as amended.

The present government is a product of what she refers to as hate speech and must not be allowed to disassociate herself from the effect of hate speech.

Sambo Muritala Esq
Email: [email protected]

 

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