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”.
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