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, [2013] 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.”
CONCLUSION
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.