Is the proposed hate speech bill dead or hibernated?
Freedom of expression is considered one of the cardinal pillars and cornerstone of fundamental rights in human rights philosophy and entire legal jurisprudence. But it appears to be one of the most confronted genre of fundamental freedoms in Nigeria. There are litanies of past events that buttress and strengthen this claim. But recognising the foundational significance of this freedom, a learned Professor of law, Osita Nnamani Ogbu in his book, Human Rights Law and Practice in Nigeria(2nd Revised Edition Vol 1), recapitulated the expressions of one of the most influential British philosophers in the traditional history of liberty, John Stuart Mill, where he stated that: If all mankind minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind…. The peculiar evil of silencing the expression of one opinion is that it is robbing the human race, posterity as well as the existing generation, those who dissent from the opinion still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth; if wrong, they lose what is almost as great benefit, the clearer perception and the livelier impression of truth, produced by its collision with error.
The above postulations portray the laudable significance of freedom of expression as an age-long principles which is in tandem with moral reasoning and just laws. What is worrisome, in the opinion of the writer, is our constant refusal to measure up with global ethical and legal standards. For instance, it is no longer ‘news’ that Nigerians were recently besieged by a proposed bill tagged “Hate Speech Bill”. What may however be ‘news’ as it stands anyways is that the atmosphere seems to be witnessing a sudden disappearance of the hype and hysteria that was orchestrated by the controversial bill.
The bill, among other things, sought to curtail or limit the manner and extent the media is being used to propagate information. The bill attracted mixed reactions across the length and breadth of Nigeria. On one hand are those who believe that the media space is under serious abuse as such requires serious sanitisation. At the other end are those who believe that step to gag the media constitutes an affront to societal fundamental freedom, and therefore expect that any attempt at restricting the media must at least, not be inimical or antithetical in a democratic society like Nigeria.. At the moment however, much is not heard of the bill. Media speculators now ponder if the said bill is already dead or hibernated to a temporary recess. Or one may simply ask if it has become a good riddance to bad rubbish.
But whatever or howsoever is the case with the bill, its birth has never been smooth as its sojourn has been riddled with wide criticisms and cold reception. Invariably, available indices show that the relationship between the government and the governed in Nigeria can be best likened to that of ‘cat and dog’ when it comes to holding public opinion via the media; be it print or electronic media.
As early as 1903, the first restrictive press law which emerged in Nigeria was Newspaper Ordinance 1903 which was a strategic bid to strictly discourage media ownership and related practices. Similar enactments such as Defamation Act of 1961, Emergency Act of 1961; Obscene Publications Act of 1961; Official Secrets Act of 1962 all targets to limit freedom of expression. Although the 1979 Constitution of Nigeria made attempt to amplify the hopes of the citizens by making provisions for freedom of expression, but such hopes were truncated by subsequent military usurpation of power in Nigeria.
Today, there is evidence of an attempt for an ideological and philosophical foundation for media freedom as was laid in sections 13 – 24 of the Constitution of Nigeria 1999 (as amended), which contains all the Fundamental Objectives and Directive Principles of the state Policy. Section 22 particularly stipulates that: The press, radio, television and other agencies of the mass media shall at all times be free to uphold the fundamental objectives contained in this Chapter and uphold the responsibility and accountability of the Government to the people. A closer look reveals that the provision raises hope and laid good foundation upon which the freedom of expression and national media policy could be built upon. In fact, it is one of the most beautiful and promising provision in our constitution. Unfortunately, its beauty is nothing but a sugar-coated beauty which can be best describes as words full of sweetness but lacking substance. The fundamental objective and directive principle simply introduced a statutory misgiving that is not only unrealisable but lame in all ramifications.
In the same vein, the same 1999 Constitution in Section 39(1) &(2) provides that (1)Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference,” adding that (2) Without prejudice to the generality of subsection (1) of this section, everyperson shall be entitled to own, establish and operate any medium for the dissemination of information, ideas and opinions.” Similarly, the Freedom of Information Act, which came into force on May 28, 2011 under President Goodluck Jonathan was another measure that the government took to strengthens the provisions of the constitution. The Act increased accessibility to information held by public office holders, protect the interests of the public as well as ensure quality and independent journalism. What followed now is calculated attempt to gag the media through the proposed Hate speech Bill. The Hate Speech Bill was earlier in March 2018 presented at the floor of the Nigerian Senate to regulate social media. But it failed. In 2019, it was re-introduced. The sponsor of the bill explained that the bill was to eliminate hate speech and discourage harassment on the grounds of ethnicity, religion or race among others and prescribes stiff penalties for offences such as where any person 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.
Evidently, the bill is bereft of clear definition as to what amount to ‘hate speech’. It is fundamentally short-sighted in form and in substance as it failed to recognise or take into consideration the existence of numerous relevant laws that tends to regulate harmful speeches and conducts. The last time this author checked, the law of sedition, law of defamation, and other avalanche of publication laws are still part of Nigerian laws. They may be silent, but they are not dead. All they need is legal life wire to make them effective.
From the above, there are proofs of strategic attempt by the leadership to jostle away an essential part of societal fundamental freedom, and systematically enthrone dictatorial tendency in a constitutional democracy. In civilized societies, fundamental freedoms and democratic principles grow and mature simultaneously with the ever dynamic character of the world order. Unfortunately, Nigeria finds pleasure in romancing archaic norms and stagnated policies.
It is the humble view of this treatise that the civil society organizations such as the human rights bodies and by extension, the judiciary, have significant roles to play in ensuring that freedom of expression and sundry freedoms do not die a perpetual death in Nigeria. The time to rise against this perennial impunity, mischief and draconian legislature is long overdue. Nigerian society must of necessity be delivered from the shackles of anti-freedom enactments. To achieve this, Robertson and Merrils in the book, ‘Human Rights in the World…’ advised that: “The mounting pressure of public opinion in the years to come will continue to have an effect in persuading or shaming government, which systematically violate human rights to improve. …lawyers have a particularly important role to play, one might say, special responsibility…the Universal declaration call on every individual and every organ of the society to strive by teaching and education to promote respect for these rights and freedom …to secure their …effective recognition and observance.
Nonetheless, while seasoned and legitimately thought-out legal framework geared towards discouraging media proliferation of despicable languages and conducts may be tolerable, any explicit or implicit bid to silence the common voice of the public must be jettisoned in its entirety. Besides, whether the proposed bill is already dead or on recess, the doors and windows for ventilation of freedoms of expressions through just channels must always be encouraged and left open as a former United States Supreme Court Justice, Louis Brandeis, opinionated in his historical concurring opinion in Whitney v. California (1927), that: If there be time to expose through discussion, the falsehoods and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.
Today, COVID-19 presents us with the opportunity to rejig various institutions and the entire social system. Only the institutions that respond effectively to these new waves are the ones likely to inherit tomorrow. The ones that are unable to embrace it will shrink and fizzle out.
In our next publication, we shall critically examine the effort of the legislature at legitimizing this ‘new normal’ through fashionable and workable legislative framework. This is because the moot question before us now is; are we ready to find opportunity in this calamity or do we continue sprawling on an untiring love and patronage for pantomime and old lyrics?
Ukam is a law teacher, a solicitor and advocate of the Supreme Court of Nigeria.
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