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‘Hate speech bill is unlawful, illegal, unconstitutional and undemocratic’

By Joseph Onyekwere
03 December 2019   |   4:16 am
Jurisprudentially, law is not static; it is dynamic and evolving with society to meet with social needs. In Nigeria, most of our laws are obsolete, and more so, there are social challenges that are new to us as a country that need to be regulated by laws.

Malcom Omirhobo

Human rights crusader and lawyer, Chief Malcom Omirhobo in this interview with Assistant Editor, Law and Foreign Affairs, JOSEPH ONYEKWERE, shares his view on the social media control and hate speech bills, the judiciary as well as the increasing level of insecurity across the country.

What is your reaction to the effort by the Federal Government to control social media through the National Assembly?
Jurisprudentially, law is not static; it is dynamic and evolving with society to meet with social needs. In Nigeria, most of our laws are obsolete, and more so, there are social challenges that are new to us as a country that need to be regulated by laws. As such, it is proper, lawful and constitutional for the National Assembly to make laws regulating social media in Nigeria provided it is in line with the demands of the constitution; the grund norm and the supreme law of the land, which binds all authorities, and persons throughout the Federal Republic of Nigeria and which gives validity to every other law in force in Nigeria. Emphatically speaking, any law passed by the National Assembly which is inconsistent with the Nigerian constitution shall be to the extent of such inconsistency null and void.

A lot of Nigerians are apprehensive that such law is intended to be used to gag free speech by a government that is perceived as being highly intolerant of dissenting views. What is your opinion on that?
Yes, Nigerians are very correct to be apprehensive. Looking at the hate speech bill and its proposed death penalty for offenders, it is a sheer waste of time, energy and resources. It shows that the Nigerian government lacks knowledge of already existing laws, lacks confidence, sense of direction, discernment and the will power to save the country from failing completely because as it stands today, Nigeria is 85 percent failed and the only thing that is keeping us together as a country is the coercion of the Nigeria military. For crying out loud, the government should be concerned about bills devolving powers from the centre to the component states of the federation, bills that will make the fundamental objectives and directive principles of state policy in the constitution justiciable, bills that will ensure that the Nigerian judiciary is independent for the observance of the rule of law and so on and so forth.

The death sentence proposed by the hate speech bill is unnecessary because there are several laws in Nigeria adequately taking care of what the hate speech bill intends to achieve. For instance, under the criminal and penal code, it is crystal clear that, if a person whether within or outside Nigeria conspires with a person in Nigeria to carry out an act that leads to the death of another person, the person who conspired, the person who actually carried out the act and the person who aided and assisted in the act are all guilty of the offence of murder punishable by death . With the extant laws of the land, the death sentence proposed by the hate speech bill, which makes Nigerians to think of being sentenced to death each time they want to express themselves is superfluous and undue interference with their freedom of expression, a calculated attempt by the government to gag the press and witchhunt opposition and therefore must not be allowed to be passed into law by the National Assembly because it is unlawful, illegal, unconstitutional and undemocratic.

What are your yardsticks of arriving at 85 percent failed state status?
The yardsticks for my arriving at the conclusion that Nigeria is 85 percent a failed state is based on the Brookings Institution’s index of State weakness co-authored by Susan Rice, President Barack Obama’s top diplomat at the United Nations, which ranked Nigeria 28 out of 141 developing countries and Fragile States Index (FSI) that placed Nigeria as the 13th least stable country in the world in 2017. And I can bet that in the year 2019, Nigeria’s fragility is worse off.

Nigeria as presently constituted is incapable to efficiently maintain all or some of the vital characteristics of a state. Nigeria has lost the ability for internal “monopoly of power”. How do we explain the unending Boko Haram scourge, the government’s of the North East and North West zones of Nigeria negotiating with bandits and militia groups for peace and the Federal Government is looking the other way? How do we explain herdsmen from neighbouring African countries coming into Nigeria unhindered through our porous borders, confidently killing the indigenous peoples of Nigeria, destroying their properties and taking over their land and forcing them to live in Internally Displaced Persons camps in their own country with no hope of returning to their homes because the Nigerian government cannot protect their life and property? Life is so cheap in Nigeria that Nigerians are being killed and kidnapped every day throughout the country without any consequences. Look at the state of our roads, hospitals, schools, ports, transport system and other socio economic amenities, they are dilapidated and in a state of disrepair. Nigerian governments’ are unable to pay salaries of government employees or to meet other financial obligations to its citizens, such as pension payments.

There is endemic corruption and impunity by government officials and political elites profiteering and resisting transparency, accountability and political representation, which has resulted in widespread loss of popular confidence in state institutions and processes.In Nigeria today, there is widespread abuse of legal, political and social rights, including those of individuals, groups or cultural institutions (e.g. violation of human rights, rising number of political prisoners or dissidents who are denied due process consistent with international norms and practices).

We now have harassment of the press, politicisation of the judiciary, internal use of the military for political ends, public repression of political opponents and religious or cultural persecution. Today there is social demographic pressures on the populace, emigration and brain-drain. Go to the various European and American embassies and see the best of our brains and manpower escaping from Nigeria. Today in Nigeria, we are seeing the emergence of an authoritarian and dictatorial government in the guise of a democratic government as we now have a compromised National Assembly and comprehensively bullied judiciary, which allows the executive arm of government to manipulate constitutional and democratic institutions and processes. If you are a member of the ruling elite or ruling party, you can do no wrong as you are rated above the law. This has made the government lose the trust of the populace.

Nigeria is the habitat for the procreation of criminal acts and now the World’s capital of poverty with decline of the society as a whole, using per capita income, Gross National Product (GNP), debt, child mortality rates, poverty levels, business failures with high level of economic and social inequality and economic decline.

You have been in the forefront of confronting state powers over alleged violation of the constitution. What is the state of the suit against restriction to movement of citizens during environmental sanitation exercise?
Yes, I have been in the forefront of challenging state powers over violation of the constitution because I love my country and I believe in its great potentials if it is allowed to operate as a true fiscal federal system of government. Before answering your question on the state of my suit against restriction to movement of citizens during environmental sanitation exercise, please, permit me to state here, that the reason for the constant and repeated violation of the Nigerian constitution by the government is due to the ignorance of over 200 million Nigerians.

Please let nobody take offence here with my assertion because from a research that I carried out, I discovered that less than one percent of the total Nigerian population have seen or own a copy of the constitution and that from this one percent less than 25 percent have actually read the constitution and understand what its content is all about and what it stands for.

The constitution of a country is the fons et origo of all laws, the exercise of all powers and the source from which all laws, institution and persons derive their authority from. The constitution seeks to provide the machinery of government and also gives rights and imposes obligations on the people it is meant for. From the foregoing, what do you think will be the faith of a Nigerian who has not seen the constitution or who has seen it and does not know its content? His right will definitely be violated because he is ignorant. It beats my imagination how Nigerians think that they can bring about a positive change without knowing the constitution.

If Nigerians know their rights and obligations under the constitution on one hand and the duties and obligations of the government under the constitution on the other hand, no government in Nigeria can violate the fundamental rights of Nigerians. Now, talking of my suit against Delta state government for restricting my movement and those of the Nigerian public in violation of our fundamental rights to freedom of movement as enshrined in the constitution, which I filed in 2017 before the Delta State High Court, Ughelli, it has been concluded and adjourned to December 9, 2019 for judgment. Suffice it to state that it is sad that the violation of the freedom of movement of Nigerians is still practiced all over the federation except in Lagos State where the Appeal Court declared the practice as illegal, unlawful and unconstitutional.

You believe that the military should not be used to carry out police duties. Do you think that the present police force in Nigeria has the capacity to maintain internal peace?
Unrepentantly, I do not believe that the Nigerian military should be used to carry out the duties of the Nigerian police.I am not speaking in void but based on the provisions of the constitution. The constitution provides for the establishment of the Nigerian police and military as two separate and distinct institutions with different areas of specialization and at the same time allows both institutions to complement each other’s job but not to take over each other’s job.

The police is responsible for the prevention and detection of crime, the apprehension of offenders, the preservation of law and order, the protection of life and property and the due enforcement of all laws and regulations with which they are directly charged, while the military is responsible for the defence of Nigeria from external aggression and to maintain its territorial integrity and secure its borders from violation on land, sea or air.

Despite the specialisation and division of labour of the Nigerian police and the military, the constitution creates room for both institutions to complement each other but not to take over each others duties and responsibilities following laid down constitutional procedures. From the police side, the constitution allows the National Assembly to make provisions for branches of the Nigeria Police Force, forming part of the armed forces of the federation or for the protection of harbours, waterways, railways and airfields.

This is complemented by the Nigerian Police Act that empowers the Police to perform such military duties within or outside Nigeria as may be required of them by, or under the authority of police Act or any other Act of the National Assembly. From the military side, the constitution permits her to suppress insurrection and to act in aid of civil authorities to restore order when called upon to do so by the president but subject to such conditions as may be prescribed by an Act of the National Assembly.

From the foregoing, you will see that there are preconditions before any of the two can complement each other. The National Assembly must give conditions and the president of Nigeria who has the operational powers of the Armed Forces would have to call upon the military to come out to aid the civil authorities.

If you look at all the military operations in Nigeria today, like the operations Ayem Akpatuma 2, Crocodile smile 4, Python dance (Egwu Eke) now christened Operation Atilogwu Udo 4, none of them meet the constitutional procedures and therefore they are all illegal, unlawful, unconstitutional and undemocratic. So, why should we as right thinking people fold our arms and encourage the Nigerian military usurpation of the duties and responsibilities of the Nigerian Police Force because it suits the selfish ends of the political class?

I strongly believe that the Nigerian Police Force as presently constituted has the capacity to maintain internal peace in Nigeria. All that is needed here is for the Nigerian government to have the will power to make the police effective and efficient by employing more hands, equipping the police and training its personnel and taking care of their welfare so as to boost their moral. But I bet that the Nigerian government will not do the needful because if it does, majority of those occupying public offices will end up in jail because their hands are not clean. They know this, that is why they keep on confusing the whole system deliberately, messing up the police, reducing them to the level of boys scouts and boys brigade and rendering them redundant by turning them to mere gate men, orderlies and body guards, while the military that is not trained in the act of policing are allowed to take over the jobs of the police.

National insecurity is getting out of hand with the recent adoption of serving judicial officers. How do you think this malaise should be addressed holistically?
Like I said earlier, Nigeria is 85 percent a failed state, so what do you expect? Divisional Police Officers (DPOs) are being kidnapped here and there and they are made to pay ransom before they gain their freedom and you are talking about serving judicial officers being adopted. It is funny! This malaise can be addressed holistically through the creation of a new Nigeria because as it stands today, Nigeria has expired. We can liken Nigeria to an irredeemable rotten pot of soup. When your pot of soup becomes spoilt do you throw away its content and the pot together? No, you throw away its content, wash your pot and cook a brand new soup.

What am saying in essence here is that there is a need for a people’s constitution were power will be devolved to the people, were each state will be allowed to manage their resources and pay taxes to the centre, were the government can be held accountable for the provisions of socio-economic amenities and so on and so forth. With this situation there will be less crime, there will be more employment and peace; and Nigeria will be able to take her rightful place once again as the big brother of the black race worldwide.

There are those who believe that state police will help in addressing the problem. Where do you stand in the matter?
I am one of those who believe that state police will help in addressing the insecurity problems in Nigeria. The police today is highly centralized and consequently ineffective and inefficient. There is the dire and urgent need for our police to be grass rooted and localized. It is not going to be an easy task because of abuses from political leaders but then we can make it if we are determined and have the willpower to succeed.

How do we allay the fears of those who validly believe state governors and highly placed politicians would use state police to terrorise their opponents, going by what we see them do today with federal police?
We need a people’s constitution in place to allay the fears of those who believe that the state governors and highly placed politicians would use the state police to terrorise their opponents. Creating state police under the present day constitution will not work because the operational powers to command the police is in the hands of the president alone, leaving the governor’s and local government chairmen with no powers over the police. With a peoples’ constitution there will be in addition to the federal police, the state police, the local government police, the city police township police etc. And the operational powers over the police will be shared amongst all the tiers of government, to grass root level. With this, there will be enough checks and balances in the system that will reduce the abuse of state police by state governors and influential politicians significantly.

Lawyers have been accused of aiding law enforcement agencies in violation of people’s rights by using them in civil offences that supposed to be the responsibility of the courts, such as debt collection. What role can NBA play here?
When you are called to the Nigerian Bar, you are regarded as Barrister and Solicitor of the Supreme Court of Nigeria. You are a minister in the temple of justice and a custodian of the laws in force in Nigeria. As a custodian of law, you are expected to know the letter and spirit of the law and uphold same. You are required to conduct yourself in a way and manner that conform with the rules of professional conduct.

Thus, any legal practitioner who misconducts himself in aiding law enforcement agencies to violate people’s rights can be penalized. For example, the police does not have the power to recover debt. So, in a situation where a lawyer aids the police to arrest, harass and embarrass a person in debt recovery or related matters, knowing well that the police does not have power over such civil issue, the Nigeria Bar Association (NBA) can investigate and commence a disciplinary action against such a lawyer before the Legal Practitioners Disciplinary Committee (LPDC).

You fought so hard through the courts to ensure justice for justice Walter Onnoghen and for the office of CJN in Nigeria even to the point of asking the court to declare Justice Muhammad Tanko as not proper and fit for office of CJN. Do you feel frustrated that you didnt get your prayers?
Unapologetically, I am fulfilled that I fought vigorously through the court to ensure justice for justice Walter Onnoghen and for the office of the CJN because I abhor injustice and lawlessness. In all, Malcolm Omirhobo Foundation filed six cases covering from when the former CJN was about to be arraigned before the Code of Conduct Tribunal (CCT), his removal from office by the president via a motion exparte order, the appointment of justice Muhammad Tanko as the acting CJN, the extension of his tenure as the acting CJN, his nomination, recommendation appointment and confirmation as the substantive CJN by the Federal Judicial Service Commission (FJSC), the National Judicial Council (NJC), the president and the Nigerian Senate.

It was widely believed then by many that I took all the pains for pecuniary gains or favour. Some alluded that I was being sponsored by the opposition political party and others thought I was doing all the trouble on tribal or ethnic grounds because I am from the South South zone of the county, where the former CJN hails from. But they were all wrong because sincerely all I did was based on self conviction and fairness. I do not know the former CJN, what I know is justice. It might interest you to know that in 2017 when the president of Nigeria refused to appoint justice Onnoghen as the CJN, I went to court to challenge the president and when he eventually became the CJN, I did not attempt to go to him to seek for his attention or favour. Up till this moment, I do not know the former CJN in person.

I do not feel frustrated that my prayers were not granted by the court because I know that in the long run, I will be vindicated. My worry, however, was the ignominious role played by the FJSC and NJC in the whole saga. These two bodies conspired to sell the soul of the judiciary to the executive arm of government. I have no regret asking the court to declare Justice Tanko as not proper and fit for office of CJN because that remains my opinion to this moment and nothing can change that.

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