BY AHURAKA ISAH, and Gbenga Soleye,
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 LEADERSHIP Friday, 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”.
