Wednesday, 27 November 2019
This write up is an expansion on the tweeter thread by Dr Omole (Analysing the Proposed HateSpeech Bill) and also partly in response to Umar Sa’ad Hassan who wanted a “good or right reason” for the rejection of the National Commission for the Prohibition of Hate Speech Bill (Hate Speech Bill). According to Mr Umar:
“Over the last couple of days, I have seen people I would have never expected to, hop blindly on the bandwagon and say the social media and hate speech bills are unconstitutional. As a matter of fact, nothing could be farther from the truth. Section 39 of the constitution guarantees freedom of speech but it doesn’t guarantee the dissemination of falsehood and the making of offensive statements capable of inciting trouble. Both proposed legislation are clear as to intent and it is preposterous for anyone to out rightly tag them an anti-free speech.”
It is a truism that the freedom of expression guaranteed by the 1999 Constitution of the Federal Republic of Nigeria (as amended) (CFRN) is not absolute. See sections 39(3) and 45(1) of the CFRN.
The Hate Speech Bill is unconstitutional because the provisions creating the offences are overly broad, vague and are not reasonably justified in a democracy. Section 36(12) of the CFRN requires that before any person may be punished for a crime, the offence and penalty should be defined in a written law. By that section a penal provision in law especially a criminal law, ought to state or define with clarity the conduct it is proscribing so that citizens can know what exactly constitutes an offence. This is to allow citizens to be able to arrange or conduct their affairs within the limits of the law. This is also to avoid arbitrary enforcement and abuse of the law by law enforcements. However, an examination of the sections creating offences under the bill reveals that the bill has failed to state with sufficient clarity what for e.g. is an “offensive environment” or “hate speech”. So if a citizen does not know what is offensive environment or hate speech how is supposed to keep the law? No one should be punished under a law unless it is suﬃciently clear and certain to enable him to know what conduct is forbidden before he does it.
In TAFIDI v. FRN(2013) LPELR-21B59(SC) Akaahs, JSC JSC held that: “Any conduct which carries a sanction of imprisonment must be expressly stated in a written law and not left to conjecture or inference by the court."
In the 17th century Bacon proclaimed the essential link between justice and legal certainty:
“For if the trumpet gives an uncertain sound, who shall prepare himself to the battle? So if the law gives an uncertain sound, who shall prepare to obey it? It ought therefore to warn before it strikes … Let there be no authority to shed blood; nor let sentence be pronounced in any court upon cases, except according to a known and certain law … Nor should a man be deprived of his life, who did not ﬁrst know that he was risking it.' (Quoted in Coquillette, Francis Bacon pp 244 and 248, from Aphorism 8 and Aphorism 39- A Treatise on Universal Justice).
In the American case of Ex Parte Bradshaw, 501 S.W.3d 665, 673 (2016) it was observed that:
“A statute is unconstitutionally vague if persons of common intelligence must necessarily guess at its meaning and differ about its application. All criminal laws must give fair notice about what activity is made criminal. However, a statute need not be mathematically precise; it must only provide fair warning in light of common understanding and practices.”
Common persons in Nigeria would necessarily have to guess at what is meant as offensive environment or hate speech as provided under the bill. Due to its many vague provisions the bill fails to provide guidance to prevent arbitrary and discriminatory enforcement.
Section 4 of the Hate Speech Bill provides 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.
It is a cardinal principle of criminal law that before a person can be found culpable for committing a crime the prosecution must prove that there was mens rea and actus reus for the offence. In ABBAH v. FRN(2017) LPELR-43373(CA) Onyemenam, J.C.A. at Pp. 19-20, Paras. B-D) held:
"The latin word mens rea is the state of mind the prosecution must prove, that the accused person had when committing a crime in other to secure his conviction. It is the speciﬁc mental state; guilty mind; criminal intent; required: in conjunction with the actual criminal act (actus reus); for an accused person to be convicted of a crime other than strict liability oﬀences.”
There are exceptions where there needs to be no guilty mind and such offences are called strict liability offences. Strict liability offences do not require a person to intend to do something wrong or morally blameworthy. However, strict liability is usually reserved for offences that are not grievous or carry a heavy penalty. Section 4 of the bill creates a strict liability offence which carries life imprisonment or death penalty, penalties which are no doubt very heavy. It is strict liability in that it provides that “…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.” So even where a person did not by his words or acts or behavior intend to to stir up ethnic hatred, but 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 the person would have committed a crime. This is a strict liability offence simpliciter because it does not require the person to have any guilty mind.
In view of the foregoing Section 24 of the Cybercrimes Act, 2015 which many commentators have cited as taking care of the offences created by Hate speech bill is debatable although its constitutionality has been upheld by the Federal High Court in OKEDARA v. ATTORNEY GENERAL OF THE FEDERATlON and by Court of Appeal in the INCORPORATED TRUSTEES OF PARADIGM INITIATIVE & 2 ORS v. A.G. FEDERATION & 2 ORS (Unreported decision of the Court of Appeal (Lagos Division) delivered on 1“ June, 2818 in APPEAL NO. CA/L/556/2017). Appeal has been filed in the Supreme Court by the Incorporated Trustees of Paradigm Initiative & 2 Ors. Section 24 contains some vague terms like “grossly offensive” “manacing character” etc.
In 2009 it was reported that the office of the Attorney General of Mississippi was reluctant to file charges of cyberstalking under the state’s law because of “the number and difficulty of the elements that must be proven… for the example the Attorney General counted seven separate elements that must be proven for conviction under section (1)(c) of Miss. Code 97-45-15. He said the need to show knowledge and intent were the most difficult aspects of the law.”
In the Indian case of SHREYA SINGHAL & ORS. v.UNION OF INDIA, the Supreme Court of India was called upon to decide on the constitutionality of section 66A of the amended Information Technology Act of 2000 (which is similar to some extent with portions of section 24 of the Cybercrimes Act). Section 66A defined the punishment for sending “offensive” messages through a computer or any other communication device like a mobile phone or a tablet. The section specifically provided that:
Any person who sends, by means of a computer resource or a communication device,—(a) any information that is grossly offensive or has menacing character; or
(b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device; or
(c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages, shall be punishable with imprisonment for a term which may extend to three years and with fine.
In the case under reference two women were arrested by the Mumbai police in 2012 for comments they posted on Facebook. The arrested women were released later and the criminal cases against them dropped yet their arrests attracted widespread public condemnation. It was felt that the police had misused its power by invoking Section 66A inter alia contending that it violates the freedom of speech and expression. The Supreme Court of India in declaring section 66A unconstitutional held that that the terms:
“…annoying, offensive, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill-will" used in the section were vague and indefinite… the learned Additional Solicitor General argued before us that expressions that are used in Section 66A may be incapable of any precise definition but for that reason they are not constitutionally vulnerable. He cited a large number of judgments in support of this submission…In fact; two English judgments cited by the learned Additional Solicitor General would demonstrate how vague the words used in Section 66A are. In Director of Public Prosecutions v. Collins, (2006) 1 WLR 2223, the very expression “grossly offensive” is contained in Section 127(1) (1) of the U.K. Communications Act, 2003. A 61 year old man made a number of telephone calls over two years to the office of a Member of Parliament. In these telephone calls and recorded messages Mr Collins who held strong views on immigration made a reference to “Wogs”, “Pakis”, “Black bastards” and “Niggers”. Mr. Collins was charged with sending messages which were grossly offensive.
The Leicestershire Justices dismissed the case against Mr. Collins on the ground that the telephone calls were offensive but not grossly offensive. A reasonable person would not so find the calls to be grossly offensive. The Queen’s Bench agreed and dismissed the appeal filed by the Director of Public Prosecutions. The House of Lords reversed the Queen’s Bench stating:
“The parties agreed with the rulings of the Divisional Court that it is for the Justices to determine as a question of fact whether a message is grossly offensive, that in making this determination the Justices must apply the standards of an open and just multi-racial society, and that the words must be judged taking account of their context and all relevant circumstances. I would agree also. Usages and sensitivities may change over time. Language otherwise insulting may be used in an unpejorative, even affectionate, way, or may be adopted as a badge of honour (“Old Contemptibles”). There can be no yardstick of gross offensiveness otherwise than by the application of reasonably enlightened, but not perfectionist, contemporary standards to the particular message sent in its particular context. The test is whether a message is couched in terms liable to cause gross offence to those to whom it relates. In contrast with section 127(2) (a) and its predecessor subsections, which require proof of an unlawful purpose and a degree of knowledge, section 127(1) (a) provides no explicit guidance on the state of mind which must be proved against a defendant to establish an offence against the subsection.”
Similarly in Chambers v. Director of Public Prosecutions,  1 W.L.R. 1833, the Queen’s Bench was faced with the following facts:
“Following an alert on the Internet social network, Twitter, the defendant became aware that, due to adverse weather conditions, an airport from which he was due to travel nine days later was closed. He responded by posting several “tweets” on Twitter in his own name, including the following: “Crap1 Robin Hood Airport is closed. You’ve got a week and a bit to get your shit together otherwise I am blowing the airport sky high1” None of the defendant’s “followers” who read the posting was alarmed by it at the time. Some five days after its posting the defendant’s tweet was read by the duty manager responsible for security at the airport on a general Internet search for tweets relating to the airport. Though not believed to be a credible threat the matter was reported to the police. In interview the defendant asserted that the tweet was a joke and not intended to be menacing. The defendant was charged with sending by a public electronic communications network a message of a menacing character contrary to section 127(1)(a) of the Communications Act 2003. He was convicted in a magistrates’ court and, on appeal, the Crown Court upheld the conviction, being satisfied that the message was “menacing per se” and that the defendant was, at the very least, aware that his message was of a menacing character.”
The Crown Court was satisfied that the message in question was “menacing” stating that an ordinary person seeing the tweet would be alarmed and, therefore, such message would be “menacing”. The Queen’s Bench Division reversed the Crown Court stating:
“Before concluding that a message is criminal on the basis that it represents a menace, its precise terms, and any inferences to be drawn from its precise terms, need to be examined in the context in and the means by which the message was sent. The Crown Court was understandably concerned that this message was sent at a time when, as we all know, there is public concern about acts of terrorism and the continuing threat to the security of the country from possible further terrorist attacks. That is plainly relevant to context, but the offence is not directed to the inconvenience which may be caused by the message. In any event, the more one reflects on it, the clearer it becomes that this message did not represent a terrorist threat, or indeed any other form of threat. It was posted on “Twitter” for widespread reading, a conversation piece for the defendant’s followers, drawing attention to himself and his predicament. Much more significantly, although it purports to address “you”, meaning those responsible for the airport, it was not sent to anyone at the airport or anyone responsible for airport security, or indeed any form of public security. The grievance addressed by the message is that the airport is closed when the writer wants it to be open. The language and punctuation are inconsistent with the writer intending it to be or it to be taken as a serious warning. Moreover, as Mr. Armson noted, it is unusual for a threat of a terrorist nature to invite the person making it to be readily identified, as this message did. Finally, although we are accustomed to very brief messages by terrorists to indicate that a bomb or explosive device has been put in place and will detonate shortly, it is difficult to imagine a serious threat in which warning of it is given to a large number of tweet “followers” in ample time for the threat to be reported and extinguished.”
These two cases illustrate how judicially trained minds would find a person guilty or not guilty depending upon the Judge’s notion of what is “grossly offensive” or “menacing”. In Collins’ case, both the Leicestershire Justices and two Judges of the Queen’s Bench would have acquitted Collins whereas the House of Lords convicted him. Similarly, in the Chambers case, the Crown Court would have convicted Chambers whereas the Queen’s Bench acquitted him. If judicially trained minds can come to diametrically opposite conclusions on the same set of facts it is obvious that expressions such as “grossly offensive” or “menacing” are so vague that there is no manageable standard by which a person can be said to have committed an offence or not to have committed an offence. Quite obviously, a prospective offender of Section 66A and the authorities who are to enforce Section 66A have absolutely no manageable standard by which to book a person for an offence under Section 66A. This being the case, having regard also to the two English precedents cited by the learned Additional Solicitor General, it is clear that Section 66A is unconstitutionally vague.”
The court further held that:
“Governments may come and Governments may go but Section 66A goes on forever. An assurance from the present Government even if carried out faithfully would not bind any successor Government. It must, therefore, be held that Section 66A must be judged on its own merits without any reference to how well it may be administered...We, therefore, hold that the section is unconstitutional also on the ground that it takes within its sweep protected speech and speech that is innocent in nature and is liable therefore to be used in such a way as to have a chilling effect on free speech and would, therefore, have to be struck down on the ground of over-breadth.”
For the reasons adduced above it is submitted that the Hate Speech Bill is unconstitutional. Under international human rights standards, the right to freedom of expression is not absolute just like under the CFRN, and may exceptionally be subject to restrictions provided that those meet a strict three-part test, according to Article 19 (3) of the ICCPR, a convention which Nigeria has ratified. Hence, all state action targeting ‘hate speech’ must:
1. Be provided by law; any law or regulation must be formulated with sufficient precision to enable individuals to regulate their conduct accordingly, i.e. the law must be concrete, clear and unambiguous, such that it can be understood and applied by everyone. The law must provide sufficient guidance to those charged with its execution to enable them to ascertain what sorts of expression are properly restricted and what sorts are not;
2. Pursue a legitimate aim, exclusively: respect of the rights or reputations of others; or the protection of national security or of public order, or of public health or morals. Principle XIII(2) of the Declaration of Principles on Freedom of Expression in Africa provides that freedom of expression should not be restricted on public order or national security grounds “unless there is a real risk of harm to a legitimate interest and there is a close causal link between the risk of harm and the expression”.
3. Be necessary in a democratic society, requiring the State to demonstrate in a specific and individualized manner the precise nature of the threat, and the necessity and proportionality of the specific action taken, in particular by establishing a direct and immediate connection between the expression and the threat.