Introduction
The Nigeria Senate recently
reintroduced a bill that seeks to penalize persons found guilty of “hate
speech”. The bill titled “National Commission for the Prohibition of Hate
Speech” was sponsored by the Deputy Chief Whip of the Senate, Aliyu Abdullahi.
The bill prescribes death penalty for anyone found guilty of spreading a
“falsehood” that leads to the death of another person. The bill also seeks the
establishment of a National Commission for the Prohibition of Hate Speech to
help investigate and prosecute offenders.
The
Bill
The bill proposes that any person who
uses, publishes, presents, produces, plays, provides, distributes and/or
directs the performance of any material, written and or visual which is
threatening, abusive or insulting or involves the use of threatening, abusive
or insulting words or behaviour commits an offence if such person intends
thereby to stir up ethnic hatred, or having regard to all the circumstances,
ethnic hatred is likely to be stirred up against any person or person from such
an ethnic group in Nigeria. According to the bill, any person who commits this
offence shall be liable to life imprisonment and where the act causes any loss
of life, the person shall be punished with death by hanging.
Expectedly,
some
civic groups have kicked against the bill because of its narrow and unclear
definition of what constitutes “Hate Speech”. They say the provisions of the
bill would be contrary to the Nigerian Constitution if the bill becomes law as
designed. They argue that the Constitution protects the rights to unhindered
speech, expression and association.
Jurisprudence on free speech and constitutional
morality
Undoubtedly, freedom
of speech is a right guaranteed under Chapter IV Section 39(1) of the
Constitution of the Federal Republic of Nigeria, 1999 (as amended). However,
the long history of the battle between national security and freedom of speech
is one that has been ongoing from generation to generation. Of course, free
speech is not absolute as it can be curtailed in the interest of national
security but this must be justifiable in a democratic setting. Inevitably, the
question that then follows is whether or not this bill is justifiable in the
circumstances.
In every society, a
conflict between the State and the individual’s opinion is bound to exist.
Punishing or curtailing an individual for exercising the freedom to free speech
contradicts the abstract theory of the promotion of a right to free speech and
expression. Free speech allows the conveyance of an individual’s ideas and
opinions. However, in some instances, individuals through their speech and
expression disrupt the law or provoke and incite violence. The duty of the
state is to strike a balance in order to maintain law and order. The bulwark of
an effective democracy is undaunted, fearless and independent thought and
speech. A gag in any form on the diverse opinions and thoughts of people will
invariably lead to stifling of a vibrant democracy. The tricky part is - where
the freedom ends and a curb gets justified.
On critically
examining the bill, it becomes obvious that it is a very subjective piece of
legislation, highly dependent on the disposition of the interpreter. We are
presented with a situation where hyper-sensitive officials may come tomorrow
who will see “hate speech” in every criticism, and crime in every utterance or
write-up. Every dissent may be termed “hate speech” and offenders jailed for
life and in extreme situations hanged.
It is the writer’s
opinion that the “overbreadth test” should be applied to this piece of
legislation to gauge its constitutionality in regards to freedom of expression.
If a provision of law is excessively ambiguous, very subjective pertaining its
applicability and its breadth very expansive, this could lead to obscurity in
its practice and its overbreadth could serve to its detriment. Applying this
test to the bill on hate speech, the exact interpretation of the word “Hate Speech” is
uncertain and indeterminable. Given the haziness in the practical applicability
of this bill, it should be rendered unconstitutional. The bill serves as a
disincentive on the freedom of speech endowed to citizens under Chapter IV
Section 39(1) of the Constitution.
For the bill to be
applicable, it must establish a reasonable nexus between a speech and its
role as an instrument to the causation of public disorder. There must be a
clear and present danger. Regardless of the degree of derogation and insult, a
certain degree of proximity needed to exist between the utterance and the
potentiality of public disorder. In Schenck v. United State,
1919 SCC Online US SC 62, the US Supreme Court elucidated the required
proximity between the utterance of speech and incitement of violence. It lays
the possibility of danger or the intent to bring it about must be imminent or
immediate. This case established the “bad tendency test”.
Brandenburg v. Ohio, 1969 SCC Online US SC 144 laid the “clear and
present” danger test, whereby the State was prohibited by the US Constitution
from repressing speech and its advocacy barring the possibility of it causing
an immediate harm to law by an illicit act or if it aimed at causing such an
action. In the US under the 1st amendment, free speech is promoted as opposed
to necessitating silence to remedy bad or injurious speech. Thus, in the US
even though some sedition laws have been retained, the courts are dispensing
extensive protection to the right of free speech and same is advocated for in
Nigeria.
Also, the procedural
analysis of the punishment prescribed proves this bill to be mischievous and an
attempt at gaging free speech and moving at perceived political opponents. It is a draconian piece of legislation meant
to cow the opposition.
Conclusion
Thus, articulation of the “National
Commission for the Prohibition of Hate Speech” bill appears to subdue and
extinguish any forms of dissent present in Nigeria under this democratic
dispensation. Such a tendency contradicts the inherent ingredients which characterize
a democracy. The existence of such provision in a country aiming to progress
appears obsolete and an over-kill. The punishment associated with it renders
the provision draconian. The continuance of such a provision induces a chilling
effect on the freedom of speech and expression, which is a supposed fundamental
right provided under Chapter IV Section 39(1) of
the Constitution.
No comments:
Post a Comment