Friday, 22nd September 2023

Freedom of expression: Thin line between hate speech, sedition and treason

By Joseph Onyekwere, Deputy Editor
17 April 2023   |   4:10 am
The aftermath of the February 25, 2023 presidential election, where the Independent National Electoral Commission (INEC) declared the candidate of the All Progressives Congress (APC), Asiwaju Bola Ahmed Tinubu, as the winner, obviously elicited joy for him and his supporters...

Bola Tinubu, (Photo by Kola SULAIMON / AFP)

The aftermath of the February 25, 2023 presidential election, where the Independent National Electoral Commission (INEC) declared the candidate of the All Progressives Congress (APC), Asiwaju Bola Ahmed Tinubu, as the winner, obviously elicited joy for him and his supporters, while his opponents and their supporters reeled in frustration, disappointments and agony, such that they vowed neither to congratulate nor recognise his emergence.

They insisted on challenging the declaration in court, and that they have since done.

However, as the handover date of May 29 approaches, the vice presidential candidate of the Labour Party (LP), Yusuf Datti Baba-Ahmed, openly declared on a national television programme that the Federal Government should not hand over to Tinubu.

According to him, Tinubu was wrongly declared the winner because he didn’t get 25 per cent of votes in the Federal Capital Territory (FCT) as stipulated in Section 134 (2)(b) of the Constitution.

He also complained that the election was tainted with malpractices and lacked transparency, following the refusal of INEC to upload results as promised during the build-up to the poll.

Baba-Ahmed, therefore, declared that swearing in the president-elect was tantamount to ending democracy and charged the President, Muhammadu Buhari, Chief Justice of Nigeria (CJN), Justice Olukayode Ariwoola, and other notable public officers to shun such handover ceremony.

In a swift reaction, the APC declared his comment as treasonable and inciting.

The presidential campaign council of the APC also called on the Department of State Security (DSS) to arrest and prosecute the LP presidential candidate, Peter Obi, and his running mate for treason.

Greatly dissatisfied by the comment, the Campaign Council urged the National Broadcast Commission (NBC) to slam a N5 million fine on the television station.

These actions and reactions increased political tension and raised the question about the limits of the freedom of expression and conduct considered treasonable in a democracy.

Ventilating the issues, a human rights lawyer, Chief Malcolm Omirhobo, said
Section 37 of the Criminal Code Act, defines treason as when any person levies war against the state, to intimidate or overawe the President or the governor of a state.

According to him, as far as the law is concerned, the comment by Baba-Ahmed, does not amount to treason and, therefore, the government cannot charge him with the offence.

Freedom of speech, he explained, is a principle that supports the freedom of an individual or a community to articulate their opinions and ideas without fear of retaliation, censorship, or legal sanction.

“Exercising freedom of expression of one’s opinion doesn’t amount to treason. Baba-Ahmed’s contention that Tinubu should not be sworn in is a mere expression of his opinion. It is not treason to express one’s personal opinion.

“Baba-Ahmed’s freedom of expression would have been limited by law, if only his comments contain hate speech or it is incitement, but that is not the case because there are none of these in his comments. So, he cannot be charged for exercising his fundamental right,” he argued.

Similarly, social commentator and law teacher, Sylvester Udemezue, said he disagrees with Baba-Ahmed’s opinion that Tinubu should not be sworn in until the determination of the cases in court..

He, however, argued that Baba-Ahmed’s comment, even if considered harsh, hard or extreme, did not violate any law in Nigeria or was outside his rights as guaranteed in Section 39 of the 1999 Constitution.

“It is also my opinion that the statement does not constitute any form of incitement or threat to peace and order in Nigeria. I see the statement as nothing more than Mr. Baba-Ahmed’s opinion in a manner he thought necessary within the limits of his rights as guaranteed by the constitution.

“Thus, whether we agree with him or not, we must respect his constitutional right to freedom of speech and expression. We must learn to respect people’s right to hold their individual opinions, however good, erratic or even unfavourable we may consider them.

“We have a duty under our laws and our democracy, to give people the liberty to know, utter, and argue freely according to their conscience. This liberty ranks above all liberties; it is slavery to stop people from voicing out their thoughts and grievances in a manner permitted by law,” he argued.

He maintained that Section 39 (1) of the 1999 Constitution (as altered) provides that “every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference.”

Udemezue held: “I think he feels injured and is only expressing his feelings. We must learn to give others the freedom to be themselves, and learn also to appreciate the differences between other people’s ways and ours, so that we would be wiser and greater. To suppress free speech is, more often than not, tantamount to committing a double wrong: it violates the rights of the hearer as well as those of the speaker.

“With due respect, it is cruel, nasty, delinquent, irrational, and malicious, on account only of the said declaration, to accuse Baba-Ahmed of inciting or plotting an interim government; more so, considering that his argument could even easily be situated (even if wrongly) within Section 135(1)(a) of the Constitution to mean that the present President could be made to remain in office until resolution of the pending presidential election petitions.

“Assuming but not conceding that he called for an interim government, how is such a call criminal? In my opinion, it’s within anyone’s right to make a call for an interim government provided that one does not take any illegal steps or make Illegal plans to install an interim government. All the government needs to do is to ignore the call or advice. For example, in 2022 Chief Afe Babalola (SAN) advocated an interim government in place of the 2023 elections.

“Judging by the exact words uttered by Baba-Ahmed during the interview, it is my opinion that any argument/allegation linking that particular outburst to the criminal offence of sedition is groundless, malevolent, impulsive, thoughtless and reckless.

“Such an irresponsible accusation against an innocent Nigerian is condemnable, and ought to be condemned, for being capable of overheating, or calculated to over heat the polity, but as I have pointed out, I think it’s just mere gas lighting, aimed to divert people’s attention from the real discussions, especially those expressing discontent and disenchantment about the ugly exorbitance of the rule of law and brazen subversion of the electoral process on February 25, 2023.”

Also, human rights lawyer, Festus Ogun explained that freedom of expression is a fundamental right guaranteed under Section 39 of the 1999 Constitution.

Democracy, he said, dies in silence, therefore, for a country practising constitutional democracy, free speech is regarded as a major pillar of the system.

“Having said that, I do not subscribe to the view that the expression of dissatisfaction of a candidate after an election is treasonable. I do not see it as hate speech either. I honestly regard it as the least a candidate or any dissatisfied party can do in a democracy.

“Did Baba-Ahmed mention that he or his party intends to forcefully take over the control of governmental machinery? What exactly is hate speech? Our recent past has shown that any public statement that doesn’t sit well with the APC government is easily regarded as hate speech. That’s unacceptable,” he stated.

Ogun warned that the government should not escalate tension in the country by making dangerous insinuations.

According to him, comments of Baba-Ahmed might be uncomfortable to some, but it is certainly not hate speech or treason.

Those who feel cheated in the electoral process, he pointed out, have the right to ventilate their grievances in court, in words and in action by way of public demonstrations.

“The government of the day should be thankful some of our people are not taking advantage of the latter because it’s all part of democratic rights,” he said.

But activist Toluwani Yemi Adebiyi, also a lawyer, thinks differently.

According to him, INEC, the constitutionally empowered body, had declared a presidential candidate to be the winner, from that moment, the declared winner assumed the legal status of President-elect.

He explained that no one has the right to say otherwise, until decided by a court of competent jurisdiction.

He said: “For whosoever and for whatever misconception by anyone to say that INEC declared candidate is not the elected President and should not be sworn in, is crassly subversive and divisive, particularly where the electoral law specifically provides what to do by parties not satisfied; to proceed to court for redress and not uttering derogatory, unconstitutional, combustible and inciting statement against the declared candidate, the constituted electoral body, the judiciary and the nation’s President. This is where Bab-Ahmed irreversibly missed it.

“His position and unguided statement has no place in law. He has erred. The only option lawfully available to him and LP is to go to court and challenge that election, anything otherwise can attract serious legal consequences.

“With a keen sense of responsibility, some Nigerians have become so lawless that their reasoning, eclipsed with failed self-interest and self-devised interpretation of the Constitution, have overshadowed their minds and callings with undignified attitudes and myopic illusions. Even some pastors on pulpit are not exempted from this crassly shameful act,” he said.

Adebiyi held that the election was keenly contested, and produced surprising outcomes.

According to him, an election “rigged” by the ruling party can never make it lose presidential election in Lagos (Tinubu stronghold), lose in Kaduna(El-Rufai stronghold), lose in Kano (Ganduje stronghold), lose in Katsina(Buhari stronghold).

For him, it is impossible for such to happen where elections were rigged and so, it cannot be a “rigged” election.

“How can someone say ‘swearing in Tinubu/Shettima is as good as swearing in Nigeria Army’, or saying that ‘democracy is ending on May 29?’ It is a crass statement that is self-incriminating, it is worse than hate speech, and an unguided gross abuse of freedom of speech. It is extreme and unpatriotically self-seeking.

“Your right to swing your hand anyhow stops the moment it begins to hit someone’s on the head, your right to shout becomes an infringement when it becomes a nuisance to someone else right of peace, such right of freedom of speech stops where it becomes an infringement on the statutory provision that aggrieved person should go to court if not satisfied; rather than crassly make reckless and thoughtless inciting statements.

“May I convincingly say that the media house that conducted the interview did nothing wrong and should not be held liable, but the maker of the inciting statements.

“The man anchoring the programme evidently distanced himself from the unpatriotic statements of the guest. He maintained professional etiquettes and patriotic stands that readily vindicate the station anywhere, any day, anytime, going bythe relevant NBC Codes,” he declared.

The lawyer stressed that the declared winner has evidences of majority support, which neither of each of the losers got and urged them to ventilate their dissatisfaction through the court, instead of abusing freedom of speech by “making crass, thoughtless, ill-motivated, self-serving, criminally-inciting, incendiary and dissentious seditious statements that have legal consequences.”

Also, Mr. Abiodun Ashiru, Lecturer, Department of Public and Private Law, Lagos State University (LASU), Ojo argued that the Nigerian Constitution guarantees freedom of expression and not free speech.

The significance of the distinction, he noted, lies in the scope and extent to which the rights could be enjoyed.

While free speech is limited to words of mouth, he said expression goes beyond that as it extends to every other medium of communication, including signs and symbols.

He said: “Section 39 of the Constitution guarantees the right to freedom of expression and the press, and ordinarily, this right covers all forms of communication, including that of the LP’s vice presidential candidate.

“However, just like every other right guaranteed under the fourth Chapter of the Constitution, the right to freedom of expression has certain limitations, including the law of defamation, hate speech, the law of sedition, cyber-bullying etc.

“As a matter of fact, I am unaware of any charges against Baba-Ahmed at the moment, but assuming he was charged for an offence created by the Criminal Code, that is, sedition or treason, the proper thing to do will be to examine critically the elements of the offence, which he is being charged with and see if his statement satisfies these elements.

“For instance, if he was being charged with sedition, the question would be to look at his statement and see if it is such that it is capable of making members of the public want to take over the government by unlawful means, or capable of bringing hatred against the government.

“One may want to ask again, are these laws constitutional in a democratic dispensation and the answer is yes. Proponents of inviolable free speech are in the habit of holding that the Constitution guarantees free speech and freedom of expression. What they mostly forget is that there is a section of the Nigerian Constitution, which allows for permissible limitations to the right in question.”

He cited Section 45 of the Constitution, which allows for the derogation of the right to freedom of expression in the interest of defence, public safety, public order, public morality or public health.

The laws criminalising sedition and treasonable utterances, he explained, are made pursuant to Section 45 of the Constitution, as it relates to public safety, order and defence.

“The only caveat put by the Constitution is that these laws must be reasonably justifiable in a democratic society. In order for the court to determine whether a law is reasonably justifiable, the court usually places the interests of the parties side by side, so it will be the right to freedom of expression of Baba-Ahmed versus the right to peaceful environment of all other Nigerian citizens.

“Even though there is no formula to arrive at this, the court would most likely agree with the prosecutor,” he declared.