Prohibition of Hate Speech As An Acceptable Restriction of Freedom of Expression? -By Nonso Robert Attoh

Nonso Robert Attoh

In the light of the recent pronouncement by the vice-president of the Federal Republic of Nigeria, Professor Yemi Osinbajo that hate speech would be considered by the Federal Government as a specie of terrorism, disparate opinions have been expressed pointing out that Nigeria does not recognise the concept of hate speech and only provides civil liability for libel or defamation. Another set of opinions have asserted that the National Assembly does not have the power to pass such laws criminalising hate speech, except through the aegis of a constitutional amendment, while expressing the view that any such law will be challenged in court as a derogation from the fundamental right to freedom of expression.

This brief opinion piece, is directed towards examining, albeit cursorily, the international laws regulating hate speech and the international obligations imposed on Nigeria to criminalise such speech, as well as the necessary care that must be exercised by the National Assembly in passing those types of laws in order to ensure that they pose restrictions to the right to the freedom of expression. These international standards are contained in the Convention on the Elimination of all Forms of Racial Discrimination, the International Covenant on Civil and Political Rights and the African Charter on Human and Peoples’ Rights. Nigeria is a signatory to and has ratified all these international treaties. Even though the Genocide Convention prohibits incitement to genocide, which is also relevant to hate speech, we will not examine this treaty in view of the restricted scope of this article, but suffice it to say that the Genocide Convention equally criminalises incitement to genocide, which is related to hate speech

It is our thesis that despite the lack of consensus in international law on the precise nature of hate speech as manifested by the reservations placed by states on treaties requiring the prohibition of hate speech, Nigeria as a party to these treaties, having not entered any reservation to such treaty provisions, has incurred obligations to prohibit and criminalise hate speech in its municipal criminal law. This is much more a pressing need in view of the recent spate of inciting vitriolic statements rocking the Nigerian cyber space and national life and which are currently hailed as the mark of courage and distinction but which unfortunately are creating hatred and animosity in the minds of Nigerians against fellow Nigerians as a dangerous precursor to acts of ethnic violence or in the extreme case, genocide.

It is also our contention that the National Assembly is empowered to make laws under Section 12 of the 1999 Constitution for the purpose of implementing a treaty for both matters on the Exclusive Legislative List and the Concurrent Legislative List and therefore are competent to pass laws criminalising hate speech without needing to amend the Constitution. And that freedom of expression, whether under the 1999 Constitution, the African Charter or the International Covenant on Civil and Political Rights is not an absolute right. And as long as the National Assembly observes the necessary procedural and substantive requirements of international law, such a law will stand international scrutiny despite its derogation from the absolute right to the freedom of expression.

Our opinion will ignore, to a large extent, the various human rights and academic disputations surrounding hate speech, in view of the disparate audience to which this piece is directed. It is hoped that steering clear of the academic and legal jargons, our audience will be able to grasp the relevant issues and recognise the reason why the prohibition of hate speech is imperative for the purpose of preventing outbreaks of violence, war and genocide etc.

International Regulations On Hate Speech

1. International Convention on the Elimination of All Forms of Racial Discrimination

This is the first international treaty dealing directly with the issue of hate speech, which introduced the concept of incitement to racial discrimination. Article 4 of the CERD provides that:

“States Parties condemn all propaganda and all organisations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination and, to this end, with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in article 5 of this Convention, inter alia:

(a) Shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof;

(b) Shall declare illegal and prohibit organisations, and also organised and all other propaganda activities, which promote and incite racial discrimination, and shall recognise participation in such organisations or activities as an offence punishable by law;

(c) Shall not permit public authorities or public institutions, national or local, to promote or incite racial discrimination.

Four out of the six categories of activities that are required to be prohibited by law under the CERD are hate speech activities namely; a. dissemination of ideas based on racial superiority, b. dissemination of ideas based on racial hatred, c. incitement to racial discrimination, and d. incitement to acts of violence against any race or group of persons of another colour or ethnic origin. The Convention, however, does not define the concept of hate speech as a form of incitement to racial discrimination.

(Note that according to Article 1 of CERD, racial discrimination’ is defined as including distinctions based on “race, colour, descent, or national or ethnic origin” which may therefore be relied upon to assert that prohibition of incitement to racial discrimination also refers to the prohibition of incitement to discrimination based on ethnic origin.)

Without going into the nitty gritty of the proscribed conduct and its elements, suffice it to say at this juncture that Nigeria, having ratified and acceded to this Convention on October 16, 1967, is by the provisions of Article 26 of the Vienna Convention on the Law of Treaties bound to perform its obligations under the Treaty in good faith, viz, pass a law prohibiting incitement to racial cum ethnic discrimination with its concomitant relationship to hate speech.

2. International Covenant On Civil and Political Rights (ICCPR), 1966

The ICCPR places an obligation on States Parties to prohibit hate speech in its Article 20(2), which provides that “Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.”, thus expressly prohibiting “any advocacy of …hatred that constitutes incitement…”

Despite the fact that the ICCPR also provides for the freedom of expression in Article 19, to be restricted only in certain stated circumstances and with certain procedural safeguards, the Committee on Human Rights in its General Comment No. 11 has held that Article 20 requiring the prohibition of hate speech is compatible with Article 19 recognising the freedom of speech. Nigeria ratified this treaty on July 29, 1993. Many African states including Kenya, Rwanda, Uganda, South Africa, etc., and European States like Austria, Belgium, Denmark, France, Germany, Italy, Sweden, Switzerland, and the United Kingdom, have all complied with this obligation under Article 20 of the ICCPR and have laws criminalising hate speech.

3. African Charter On Human and Peoples’ Rights

Unlike the American Convention on Human Rights which expressly bans hate speech, the African Charter, in its Article 2, provides for non-discrimination in the enjoyment of rights, recognises the right to the freedom of expression in its Article 9 but also provides for the duty to respect and consider fellow beings without discrimination and to maintain relations aimed at promoting, safeguarding and reinforcing mutual respect and tolerance in its Article 28, without expressly requiring the states to prohibit hate speech. Article 28 may, however, be relied upon as a ground for prohibiting hate speech as being discriminatory and against a culture of mutual respect and tolerance. The African Commission, however, in its Resolution on the Right to Freedom of Information and Expression on the Internet in Africa, expressly condemned hate speech in Africa.

Meaning of Hate Speech and Speech That May Constitute Hate Speech

As we had previously remarked, hate speech is not defined in the various international instruments that have prohibited it. An attempt was made to define hate speech in the Council of Europe Recommendation on Hate Speech as follows:

The term “hate speech” shall be understood as covering all forms of expression
which spread, incite, promote or justify racial hatred, xenophobia, antisemitism or
other forms of hatred based on intolerance, including: intolerance expressed by
aggressive nationalism and ethnocentrism, discrimination and hostility against
minorities, migrants and people of immigrant origin.

The International Criminal Tribunal for Rwanda in the Nahimana Case defined hate speech as the “stereotyping of ethnicity combined with its denigration”.

The African Commission on Human and Peoples’ Rights in its Resolution on the Right to Freedom of Information and Expression on the Internet in Africa, while condemning the use of hate speech on the Internet referred to hate speech as any form of speech which degrades others, promotes hatred and encourages violence against a group on the basis of criteria including race, colour, religion, national origin, gender, disability or a number of other traits.

There are also other attempted definitions of hate speech by Amnesty International, YouTube, etc.

Thus, from these attempts to define hate speech, we may arrive at an understanding that it generally has a tendency to spread, promote, justify or stir up people to engage in ethnic and racial hatred, fear of strangers and people who are not of the same ethnic origins with them or generally breeds hatred based on intolerance. Such speech also stereotypes and denigrates or degrades ethnicity and encourages violence against them.

Despite the absence of an authoritative definition of hate speech, certain forms of speech criminalised as hate speech, have been upheld by the Human Rights Court as not constituting an infringement of the freedom of expression. These include the following:

1. Distribution of materials, slogans (Like “Kill the Boer, Kill the Farmer” chanted at an ANC rally in South Africa and decided by the South African Human Rights Commission in the case of the Freedom Front (Appellants) and the South African Human Rights Commission and the Freedom of Expression Institute (Respondents) as constituting hate speech) and songs;

2. Religious hate (case of Norwood v. The United Kingdom in which displaying a poster with the words “Islam out of Britain – Protect the British People”, led to a conviction for aggravated hostility towards a religious group),

3. Apology for violence and incitement to hostility (case of Surek (no. 1) v. Turkey, in which a conviction for “disseminating propaganda against the indivisibility of the state and provoking enmity and hatred among the people” was held as not violating the freedom of expression, as the published letters amounted to an appeal to bloody revenge and one of the letters had identified persons by name, stirred up hatred for them and exposed them to the possible risk of physical violence);

4. Condoning terrorism (Leroy v France where a cartoonist was convicted following the publication in a weekly newspaper of a drawing representing the attack on the twin towers of the World Trade Center with a caption “We all dream of it… Hamas did it” as a public condoning of terrorism. The Court in denying that the conviction infringed on his right to freedom of expression held that the drawing was not limited to criticism of American imperialism but supported and glorified the violent destruction of America based on the caption which accompanied the drawing which expressed moral support for those he perceived to be the perpetrators of the September 11, 2001 attacks;

5. Incitement to ethnic hatred (Balsyte-Lideikiene v. Luthania) in which the court approved a finding by the Polish courts that the Applicant who owned a publishing company had breached the Code on Administrative Offences for publishing and distributing the “Lithuanian Calendar 2000” which, according to conclusions of political science experts, promoted ethnic hatred. The Applicant was issued an administrative warning and the unsold copies of the calendar were confiscated and this was upheld as not constituting an infringement of the freedom of expression as the applicant had expressed aggressive nationalism and ethnocentrism and statements inciting hatred against the Poles and the Jews;

6. Incitement to racial discrimination or hatred – Soulas and others v. France – conviction for publication of a book entitled The Colonization of Europe for inciting hatred and violence against Muslim communities from northern and central Africa. The conviction was upheld as not constituting an infringement of the freedom of expression because the terms used in the book were intended to give rise in readers of a feeling of rejection and antagonism, exacerbated by the use of military language, with regard to the communities in question, which were designated as the main enemy, and to lead the book’s readers to share the solution recommended by the author, namely a war of ethnic re-conquest.

Does the National Assembly Have the Power To Enact HAte Speech Laws Without Amending the Constitution?

Section 4(2) of the 1999 Constitution vests the power to make laws for the peace, order and good government of the Federation or any part thereof with respect to any matter included in the Exclusive Legislative List in the National Assembly, consisting of a Senate and a House of Representatives. The Exclusive Legislative List set out in Part 1 of the Second Schedule to the Constitution contains as number 31 item on the list of matters which the National Assembly has exclusive legislative competence, “the implementation of treaties relating to matters on this list”.

As a follow-up to these provisions, section 12 of the 1999 Constitution provides that the treaties between the Federation and other countries shall not have the force of law except to the extent to which such treaties have been enacted into law by the National Assembly, and for the purpose of implementing a treaty, the National Assembly may make laws for the Federation or any part thereof with respect to matters not included in the Exclusive Legislative List. The snag, however, is that before a Bill for an Act of the National Assembly in respect of matters not included in the Exclusive List which is passed for the purpose of implementing a treaty, is presented to the president for assent or is enacted, it must be ratified by a majority of all the Houses of Assembly in the Federation (Section 12(3)).

This provision of section 12(3) assumes a very important position because despite the fact that item 68 on the Exclusive Legislative List which lists matters incidental and supplementary to any matter mentioned elsewhere in the list, which is interpreted in part III of the Second Schedule as including, without prejudice to their generality, references to offences, the jurisdiction, powers, practice and procedure of courts of law etc, and which would have empowered the National Assembly to make laws exclusively on offences, jurisdiction, powers, practice and procedure of courts of law for the purpose of implementing the ICCPR, is still caught by the fact that the treaty implementing law under which the offences are created must relate “to matters on this list” (i.e the exclusive legislative list) and crimes or hate speech specifically is not included in the Exclusive Legislative list.

Having determined that passage of any hate speech legislation under section 12(2) and (3) of the 1999 Constitution would result in the bottleneck of having it pass through ratification by a majority of all the Houses of Assembly of the states, which was the same reason why the Child’s Rights Act and the Violence Against Persons (Prohibition) Act were passed as Laws applying only to the Federal Capital Territory by virtue of section 299 of the Constitution, it then becomes imperative to seek for any other head under the Exclusive Legislative List under which to anchor this piece of legislation and give it a nationwide application.

We suggest that there is a possibility of achieving this by bringing such legislation under item 60(a) and item 68 of the Exclusive legislative List read in conjunction with sections 14(b), section 15 generally and 15(2) specifically, section 17(2)(a) and 17(2)(b), section 19(c) and section 23 of the 1999 Constitution.

Having canvassed the above argument in relation to the Child’s Rights Act elsewhere, and being an academic argument which has not been pronounced authoritatively on, we will simply summarise that the National Assembly can validly pass any law on Hate Speech, without any need to amend the 1999 Constitution either under section 12(2) and (3) of the 1999 Constitution (in which case the Bill must be ratified by the majority of Houses of Assembly of the States or be considered as a law applicable only to the FCT) or as suggested above under items 60(a) and (68) of the 1999 Constitution in order to get around the need for ratification by majority of the state Houses of Assembly.

Can Hate Speech Amount To An Act of Terrorism?

It is our opinion that it will be difficult, if not almost impossible, to establish hate speech as a specie of terrorism considering that under the Nigerian Terrorism (Prevention) Act 2011, as amended by the Terrorism (Prevention) (Amendment) Act 2013, for an act to amount to terrorism it must be an act which is deliberately done with malice aforethought and which must fulfil three conditions; (1.) It may seriously harm or damage a country or an international organisation, 2. It is intended or can reasonably be regarded as having been intended to achieve certain listed objectives and 3. It involves or causes, as the case may be, certain prohibited criminal acts. Bearing in mind the use of the word “and’ in the section which imports the idea that those three conditions are conjunctive and must be cumulatively proved as elements of a terrorist act, one can submit that hate speech can only pass for an act of terrorism where it may seriously harm or damage the country, may be or have been intended or can reasonably be regarded as having been intended to achieve among other objectives to seriously intimidate a population or seriously destabilise or destroy the fundamental political, constitutional, economic or social structure of a country etc., and finally such hate speech must also have involved or causes an attack upon a person’s life which may cause serious bodily harm or death etc. Most hate speech will not reach the threshold of fulfilling the third cumulative condition laid out in section 1.

However, section 5 of the Amendment Act makes it a crime for any person to knowingly, in any manner, directly or indirectly, solicit or render support for the commission of an act of terrorism, or a terrorist group. Such prohibited “support” includes incitement to commit a terrorist act through the Internet, or any electronic means or through the use of printed materials or through the dissemination of terrorist information. In Holder v. Humanitarian Law Project, the American Supreme Court upheld the application of the Material-Support Statute as not being a violation of the freedom of speech First Amendment right of the plaintiffs. Even though, the above case may only be persuasive in Nigerian Courts, especially considering that the First Amendment allows for wider scope for the enjoyment of the right to freedom of expression and also in view of the differences between the Material-Support Statute and the Nigerian Terrorism (Prevention) (Amendment) Act, we may submit that if hate speech constitutes an incitement to commit terrorist acts through the Internet or any electronic means or through the use of printed materials, it can be prosecuted as the crime of rendering support for the commission of a terrorist act without infringing on the right of freedom of expression of the accused persons.

What About Media Gagging Through Hate Speech Legislation?

It is important to note briefly in this regard that under international law, the test for restrictions on freedom of expression is a very strict one, which imposes on the states a high standard of justification for such restrictions.

Thus, under the ICCPR, any restriction on freedom of expression must be provided by law and this law must be accessible and “formulated with precision to enable the citizen to regulate his conduct.

Second, there is an exclusive list of aims provided in Article 19(3) which any interference with the freedom of expression must pursue in order to be justifiable and any restriction on the freedom of expression serving other aims are not legitimate.

Third, the restriction must be necessary to protect those listed aims in the sense that there is a “pressing social need” for the restriction. This means that the reasons advanced by the state to justify the restrictions are both relevant and sufficient and the proposed restriction is proportionate in that the benefits outweigh the harm. (see the African Court on Human and Peoples’ Rights case of Lohe Issa Konate v.Burkina Faso, decided in 2016).

Any proposed law on hate speech, would necessarily be subjected to the above tests before it can be justified as an acceptable restriction to the freedom of expression.

Conclusion

In Erbakan v. Turkey, the court explained the rationale behind prohibiting hate speech as follows:

“… 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.”

This basically means that hate speech offends against the principle of tolerance and respect for the equal dignity of all human beings which is the foundation of a democratic, pluralistic society.

Equally, it has been observed that advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence often precedes mass atrocities like genocide and war and as such it is imperative that restrictions should be placed on such speech in order to prevent such atrocities. The dangers of defamatory hate speech are real, having been experienced in places in Western Europe, former Yugoslavia, in Eastern Europe, and down to Rwanda.

Nigeria is currently at a dangerous cross-road tottering on a precipice with the rehashing of old grievances which keep surfacing daily to polarise the citizens of the country. The polemics and bitter vituperations which fill Nigeria cyber-space, often championed by public figures who are set up as the new model and standard of courage and bravery, calls for urgent measures directed towards curbing this growing menace and nipping it in the bud. Even though the sanction of the criminal law alone will not eradicate the menace of hate speech, as long as the underlying causes continue to fester, it may be one solution amidst a myriad of possible solutions. With absolute respect to our president, His excellency Muhammadu Buhari, even as the criminal law option is being employed, there is a need to look into the root causes of the prevalent hate speech and seek to allay the fear/suspicion of the ethnic groups of being marginalised and dominated by the ruling ethnic group. It may indeed be appropriate to apply the carrot and the stick approach and begin a process of national reconciliation, even as the criminal law option is pursued to deter unrepentant and die-hard hate speech advocates.

Even though the hate speeches aired on Radio Biafra and the hate song released by Northern elements and many other manifestations of hate speech in our national space cannot be caught by any new legislation criminalising hate speech because of the principle of non-retroactivity of criminal legislation (section 4(9) and 36(8) of the 1999 Constitution), yet it is important that considering the current realities facing the Nigerian state, efforts should be made to arrest this spreading canker-worm that portends great danger for all and sundry. In imbibing the truth set out in the Preamble to the CERD that, “…any doctrine of superiority based on racial differentiation is scientifically false, morally condemnable, socially unjust and dangerous…”, we learn tolerance and thereby ensure our continued corporate human development. And considering the eternal words of Jeremy Bentham that “Nature has placed mankind under the governance of two sovereign masters, pain and pleasure. It is for them alone to point out what we ought to do, as well as to determine what we shall do”, applying the sanction of the criminal law may serve to point out what we ought to do as a people in a globalised world.

Nonso Robert Attoh is a law lecturer in the Faculty of Law, University of Nigeria, Enugu Campus.