Criminalising Hate Speech as Offence in Nigeria: Whether there is any Legal Basis Under the Nigerian Laws? – Hameed Ajibola Jimoh Esq.
In the recent time, in Nigeria, ‘hate speech’ has been degenerating into such a situation that has attracted government of both the Federal and the State to resolve at criminalizing ‘hate speech’, despite the fact and of course, the fear of many Nigerians that such a decision will end up restricting and or inhibiting the freedom of expression of the Nigerian citizens. Also, while Federal Government of Nigeria has spoken that there is already a legal framework which prohibits ‘hate speech’ throughout Nigeria, under the Terrorism Prevention Act No. 10, Laws of the Federation of Nigeria, 2011, some have argued that there is no law that has made ‘hate speech’ an offence in Nigeria.
This paper is an attempt at considering whether there is any legal basis for criminalizing hate speech by the government, whether the Federal Government can by an Act of the National Assembly, for instance, by the provisions of the Terrorism Prevention Act No. 10, Laws of the Federation of Nigeria, 2011 or any other Act of the National Assembly having already and or to have such force in a later time, prohibit and or criminalize hate speech throughout Nigeria and at the exclusion of the House of Assembly of the States?
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‘Hate speech’ is a speech or statement or utterances whether written or spoken or published in whatever form, which is motivated in part or in whole by prejudice or hate. And what is really worthy of notice is that ‘hate speech’ involves an element of bias or prejudice towards the victim because of the group that the perpetrator sees the victim as belonging to. ‘Hate speech’ can therefore be made for different reasons. The maker may see the victim as a symbol of a broader group (such as: all Muslims, all Christians, all Hausas, all Yorubas, all Igbos, all Northerners, all Easterners, all Southerners, all members of a political party, all males, all females, etc. and the maker may feel jealousy or resentment towards the group of people or the maker may see the victim as the symbol of an idea or concept that he does not like. This kind of hatred for the victim, makes the victim to suffer a high level of a consistent high level of psychological distress, which includes a range of symptoms of distress, such as: depression, anger, sleep disturbances, nightmares, diarrhea, headaches, relationship problems, increased substance abuse, mistrustfulness, as well as feelings of being unsafe, even in his father land.
As it is, it is submitted that the word ‘speech’ is part of expression and freedom of expression has been guaranteed by section 39 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)-herein after referred to as the Constitution. Specifically, in section 39(1) of the Constitution. Also see Article 9 (2) of the African Charter on Human and Peoples’ Rights. However, by section 45 (1)(a)and(b) of the Constitution, this right is not absolute as it can be derogated from subject to the provisions of the subsection thus ‘Nothing in section 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society- (a) in the interest of defence, public safety, public order, public morality or public health or (b) for the purpose of protecting the rights and freedom of other persons’. It is based on these provisions of section 45(1) of the Constitution (supra) that the writer of this paper submits that the government will be reasonably justified to make laws restricting and or prohibiting the abuse of the freedom of expression (a) in the interest of defence, public safety, public order, public morality or public health or (b) for the purpose of protecting the rights and freedom of other persons, against individuals who make speeches and or express themselves by hatred, malice, prejudice and or evil mind against another. Having made this submission, the question is whether there is any law in Nigeria criminalizing ‘hate speech’ as a specie of ‘hate crimes’?
It is the submission of the writer of this paper that considering the fact that ‘offence’ or ‘crimes’ generally are not within the provisions of the Exclusive Legislative List of the Constitution, both the National Assembly and the House of Assembly of a State shall have the power to legislate on criminalizing ‘hate speech’. While a scrutiny of the Exclusive Legislative List and the Concurrent Legislative Lists will confirm that there is nothing contained therein that gives the National Assembly the exclusive power to make ‘hate speech’ an offence for the whole of Nigeria rather, it is under the Residual Power of the House of Assembly of the States of the Federation and the National Assembly will only have such power only in respect of the Federal Capital Territory- Abuja-herein after referred to as FCT- as a State of the Federation by virtue of section 299 of the Constitution. Therefore, the question is, is there any law either enacted by the National Assembly or the House of Assembly of the State criminalizing ‘hate speech’? Nevertheless, before answering this question, it is very important to explain the legal basis for the power of the National Assembly to have the power to legislate for the good government of the Federation and any part thereof. This is provided for in Section 4 of the Constitution that ‘The National Assembly shall have 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 set out in Part I of the Second Schedule to this Constitution’. Which by subsection 3, is to the exclusion of the Houses of Assembly of States. And by subsection 4 of the section 4, the National Assembly shall also have the power to legislate on Concurrent Legislative List. The Constitution also emphasizes that the States too shall have power to legislate for the peace, order and good government of the State or any part thereof in subsection 7 of section 4 of the Constitution. Furthermore, the Supreme Court of Nigeria has held that any power not contained in the Exclusive Legislative List and the Concurrent Legislative List is contained on the Residual List of which only the House of Assembly of a State shall have the power to legislate upon such and as said earlier and pursuant to section 299 of the Constitution, it is submitted that the National Assembly shall also have such power only in respect of the FCT as a State of the Federation. See the case of: A.G. Federation v A.G. Lagos State (2013) 16 NWLR (Part 1380) 249 SC.
Therefore, a close study of the provisions of the Terrorism Prevention Act (supra) reveals that in the FCT, ‘hate speech’ will amount to ‘terrorism’ as defined by the Act thus ‘section 1(1). And ‘act of terrorism’ is defined by subsection 2 of section 1 of the Act to mean an act which is deliberately done with malice, aforethought and which…’ (Underlining is mine for emphasis). See paragraphs: a-d of the subsection 2 and sections 1-14 of the Act, as ‘terrorist’ is defined by section 40 to mean ‘any person involved in the offences under Section 1 to 14 of this Act and includes his sponsor’.
From the above discussions, and without prejudice to the submissions made thereunder, it is generally submitted as follows:
- There is reasonable need for government to restrict the freedom of expression of Nigerian citizens leading to ‘hate speech’, without infringing on the freedom of expression unlawfully.
- Criminalizing ‘hate speech’ is within the Residual Legislative List of which only the House of Assembly of the State shall have the power to legislate on.
- Both the National Assembly for the FCT and the House of Assembly of a State shall have the power to legislate on criminalizing ‘hate speech’.
- The provisions of the Terrorism Prevention Act No. 10, Laws of the Federation of Nigeria, 2011, in relation to ‘hate speech’ shall only be applicable to the FCT and not throughout Nigeria.
- A House of Assembly of a State of the Federation is at liberty to make law(s) prohibiting ‘hate speech’ in that State.
- ‘Hate speech’ shall not be regarded as offence in Nigeria or any part thereof except there is a law(s) to that effect. See: section 36(8) and (12) of the Constitution.
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